This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 2 ). 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 Middle brook, 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 during2

deliberation and that the prosecutor committed misconduct in her closing statement. Additionall y, appellant raises several issues in his pro se supplemental brief. We affirm. FACTS Respondent State of Minnesota charged a ppellant by complaint with third

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

co mplaint 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 C ity 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 subse quently walked toward a K m art. When Officer Hoglin and another officer went to the scene, they stopped and talked with appellant, who was the only man walking in the
K m art parking lot. A ppellant 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 contain ed 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 McMul len 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 Thie f 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 cont ained candy, was sitting in another room, and the door to the bottom part of the machine, which contained pop, had been pried open. Although t he safe in the owner’s office had been tampered with , it had not been opened. Ms. Efteland noticed that the chan ge 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 do nation box. Greg Ornquist, the owner of Speed’s Auto Service and Ms. Efteland’s brother, estimated that be tween $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 poli ce. 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 to4

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 presen t 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 investigato r 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 sci entist 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

- de gree burglary on April 11, 2013, and appellant was subsequent ly 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 contend s 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 D egree

– 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 pos session. 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 bus i ness during bus i ness hours[?]” and “Is [sic] #2 mean during or after bus i ness hours[?]” O ff the record, the district court discussed with the prosecutor and appellant’s attorney what an appropriate response might be

. T he 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 ins tructions as given and your recollection of the evidence.” Both attorneys agre ed 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 o f 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). T he 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 dis trict 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 t he 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 co mment. 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.”)

. Appellan t 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 exce pt 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 constit ute burglary. We disagree.8

Appellant has not shown that the district court’s instruction was error because t he evidence presented at trial provides no factual basis from which a jury could find that a crime was committed during business hours. The testim ony 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 b een 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 ev idence indicating Speed’s Auto Service’s normal operating hours, the record shows that the burglary o ccurred sometime after Ms. Efteland left Speed’s Auto Service around 5:00 and befor e 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 attemp t 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 prove n 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 r equest 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 respect9

from those in appellant’s case. In Shannon , the prosecutor misstated the l aw during closing argument by improperly call ing h eat

- 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 was n’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 situ ation, 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 b y 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 call ed 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 sa ys 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 th eir 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. Fitzger ald 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 obje c t 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). O nce an appellant shows an error that is plain, however, the burden shifts t o the state to prove that no11

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 inves tigation 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 w ould 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

. Se e Minn. R. Evid. 801(d)(2)(A) (defin ing a statement made by a party and offered against that party as non hearsay). 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 prose cutor 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 s e 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 defe ndant had a prior opportunity for cross

examination.’” 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 Con frontation 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). Whether13

the admission of evidence violates a defe ndant’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 call ed 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 possibl e criminal event

— a person attempting to break into McMullen Auto Sales. Ms. McMullen’s call is analogous t o 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 C onfrontation C lause 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
dis cretion. State v. Amos , 658 N.W.2d 201, 203 (Minn. 2003). W hen 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, h earsay is an out

- of

- court statement of

fered to prove t he 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). T he district court did not abuse its discretion by admitting these statements because th ey do not constitute hearsay. Ineffective Assistance of Counsel Finally, a ppellant 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 that15

counsel’s performance fell belo w 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 i s presumed reasonable. Schneider v. State , 725 N.W.2d 516, 521 (Minn. 2007). Appellant’s pro se supplemental brief show s a general dissatisfaction with the fact he was convicted. He appears to believe that, but for his attorney’s failure to call Ms.
McMu llen 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). W e 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. McMul len 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 violat ions 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)). T he discussion above shows that appellant is incorrect on the law regarding hearsay. A ppellant 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 reasonabl e.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. A ppellant’s contention that his counsel was ineffective is based on appellant’s own misunderstanding of the law

. A fter a thorough review of the record in this case, we conclude that a ppellant did not receive ineffec tive assistance of counsel. Affirmed.