This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-99-1020

 

State of Minnesota,
Respondent,

vs.

Frank Anthony Mendoza,
Appellant.

 

Filed March 28, 2000

Affirmed
Anderson, Judge

 

 

Hennepin County District Court

File No. 98064741

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

                  Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

            Appellant Frank Anthony Mendoza was convicted of two counts of aiding and abetting second-degree murder and pleaded guilty to second-degree assault.  The district court departed upward from the presumptive sentence on one murder conviction and imposed consecutive sentences for the three convictions.  On appeal, appellant argues that (1) the jury had insufficient evidence to convict him; (2) the district court abused its discretion by departing from the presumptive sentence and ordering consecutive sentences; and (3) various trial errors warrant a new trial.  We affirm.  

FACTS

On June 26, 1998, a witness saw appellant and another man at a Minneapolis shelter and driving around in a light blue van.  That witness saw that appellant had a knife with a six-inch blade and a wooden handle.  Later that night, Charles Carpenter drove into the parking lot of a Minneapolis bar and saw appellant walk toward a black sport-utility vehicle (“SUV”).  Carpenter clearly saw an African American man leaning in the driver’s side window of the SUV, and saw appellant at the passenger’s side.  As the passenger started to get out of the vehicle, appellant punched him and the passenger fell to the ground.  Carpenter did not see a weapon.  Another African American man appeared from the behind the SUV, and kicked and hit the fallen passenger.

As Carpenter started toward the bar to call for help, he and another witness saw appellant and the two African American men run toward a light colored minivan, get in, and speed away.  Meanwhile, the driver of the SUV got out, took a few steps, then collapsed.  A dead body lay on the passenger side of the SUV in a pool of blood. Someone called 911.  When police stopped the fleeing light blue minivan a short time later, there were two men inside. 

The police arrested the driver, an African-American man, with little difficulty, but appellant, the passenger, resisted.  The officers placed the suspects in separate squad cars and transported three witnesses from the bar to the scene of the arrest.  Each witness separately viewed first one suspect, then the other.  Police had to sit appellant up so the witnesses could see him.  Two witnesses identified appellant as the man they saw in the bar’s parking lot.  One witness identified the African-American man as someone he had seen in the bar’s restroom that night, but did not recognize appellant. No one pressured the witnesses to identify either man. 

The driver of the SUV, James Branby, had been fatally stabbed 19 times in the left chest, neck, and back and had other wounds to his right side.  His passenger, Donald Pyle, died within half a minute after the left part of his throat was cut.  Pyle also sustained twelve other stab wounds on both sides of his body.  The blood alcohol levels in both men showed that they were intoxicated when they died. 

Police recovered a bloody knife with a wooden handle from the minivan’s passenger seat and found a bloody folding knife on the passenger’s side of the dashboard.  DNA test results showed that the blood on the wood-handled knife was mixed, corresponding to both Branby and Pyle’s DNA, but no one else’s.  The folding knife had a mixture of blood from three or more people so the DNA analysis was inconclusive, but the expert who conducted the DNA tests testified that she could not exclude Pyle as a source of the blood.  Samples taken from the minivan, appellant’s right shoe and from a significant amount of blood found on the right leg of appellant’s jeans matched Pyle’s DNA profile.  A sample taken from appellant’s right hand contained a mixture of DNA, but registered a strong match for Branby’s DNA profile.

            The jury found appellant guilty of both second-degree murder charges, and five days later, appellant pleaded guilty to a second-degree assault arising from a separate incident the day of the murders.  The district court sentenced appellant to consecutive terms totaling 825 months (68.75 years).  That total represented an upward departure from 306 months to 480 months for aiding and abetting the second-degree murder of Donald Pyle, a presumptive 306-month term for aiding and abetting the second-degree murder of James Branby, and a presumptive 39-month term for the second-degree assault.     

D E C I S I O N

1.         Sufficiency of the evidence

             We review the sufficiency of the evidence to determine whether, in light of the reasonable inferences that can be drawn from the evidence, the jury could reasonably find the defendant guilty beyond a reasonable doubt.  State v. Walen, 563 N.W.2d 742, 749 (Minn. 1997).  We view the evidence in the light most favorable to the conviction and accord great deference to a jury verdict, as the jurors are in the best position to evaluate all of the evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

            Minn. Stat. § 609.05, subd. 1 (1996) confers criminal liability for a crime on any person who “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”   While mere presence at a crime scene is not sufficient proof of aiding and abetting, “presence, companionship, and conduct before and after the offense are circumstances from which a person’s participation in the criminal intent may be inferred.”  State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981) (citation omitted).  “Where the accused plays at least some knowing role in the commission of the crime and takes no steps to thwart its completion, the jury may properly infer the requisite mens rea for a conviction of aiding and abetting.”  State v. Strimling, 265 N.W.2d 423, 429 (Minn. 1978). 

            The record shows that appellant was seen carrying a wood-handled knife and driving around with his accomplice in a light blue van hours before the murders.  An eyewitness saw appellant punch Pyle while his accomplice leaned over the SUV’s driver, Branby.  Appellant claims he arrived too late to stop his accomplice’s attacks. But appellant did not leave or get help.  Instead, he fled the scene with his accomplice in the light blue minivan.  There was evidence that appellant resisted arrest and tried to avoid being seen by identifying witnesses.  The blood samples taken from appellant’s clothing and the wood-handled knife matched that of the victims.

            Based on the eyewitness testimony, the forensic evidence, and appellant’s conduct before and after his arrest, a reasonable jury could find, beyond a reasonable doubt, that appellant played a knowing role in the murders.

2.         Sentencing

            Appellant also argues that the trial court exaggerated the criminality of his conduct by departing from the presumptive 306-month sentence to the 480-month statutory maximum on one of the two murder counts and by imposing consecutive sentences.  We review a district court's sentencing decisions for an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).

            a.  Upward departure

            The district court imposed a statutory-maximum 480-month sentence for the conviction involving the death of Pyle.  A sentencing court has broad discretion to depart from the sentencing guidelines where there are substantial and compelling aggravating circumstances.  Minn. Sent. Guidelines II.D; State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).  Although the upper limit on a durational departure is generally limited to double the presumptive sentence, that limit does not apply where the aggravating circumstances are severe.  State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982).   The four severe aggravating factors cited by the district court in this case adequately support the statutory-maximum sentence imposed.

            First, the number of stab wounds and on Pyle’s body and his cut throat constituted particular cruelty.  See Minn. Sent. Guidelines II.D.2.b.(2) (particular cruelty is an aggravating factor); State v. Rathbun, 347 N.W.2d 548, 548 (Minn. App. 1984) (deciding that 23 stab wounds constitutes particular cruelty).  Second, appellant acted as an active participant among three or more persons in committing the crimes.  See Minn. Sent. Guidelines II.D.2.b.(8) (participation in a group crime is an aggravating factor). 

            Third, appellant exploited the vulnerability of the victim, attacking him while knowing that his reaction time and means of escape were limited.  See Minn. Sent. Guidelines II.D.2.b.(1) (victim vulnerability is an aggravating factor); Ture v. State, 353 N.W.2d 518, 522 (Minn. 1984) (noting that a victim's vulnerability due to intoxication may be considered a reason for upward departure). 

            Finally, appellant has a past conviction for a crime involving injury to the victim, and this crime involved two fatally injured victims.  See Minn. Sent. Guidelines II.D.2.b.(3) (providing that an offense involving an injured victim following a felony conviction for a crime where the victim was injured constitutes an aggravating factor supporting upward departure). 

            As further justification for imposing the statutory maximum sentence, the district court sentenced appellant as a “dangerous offender” under Minn. Stat. § 609.152 (1996) (current version at Minn. Stat. § 609.1095 (1998)).  That provision allows district courts to depart up to the statutory maximum when the offender has two or more prior convictions for violent crimes and the court specifically finds that the offender is a danger to public safety.  Id.   Appellant’s two past assault convictions support the application of the “dangerous-offender” statute and the district court’s decision to up to the statutory-maximum sentence.

            b.  Consecutive sentencing

            District courts may impose consecutive sentences when a defendant is convicted of multiple felonies involving more than one victim.  See Minn. Sent. Guidelines II.F.; see also State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).  In this case, two victims were fatally wounded.  Under these circumstances, the imposition of consecutive sentences does not unfairly exaggerate appellant’s criminality.  See State v. Sanders, 598 N.W.2d 650, 656-57 (Minn. 1999) (affirming consecutive sentences where defendant shot three victims, whose injuries ranged from minor to fatal.)

3.         Issues raised by appellant’s pro se supplemental brief

            In his pro se supplemental brief, appellant raises additional evidentiary issues.  A district court’s evidentiary rulings will not be overturned absent an abuse of discretion.  State v. Chambers, 589 N.W.2d 466, 475 (Minn. 1999).  A careful review of the record and relevant law shows that all of appellant’s claims lack merit. 

            Appellant first argues that the district court erred by admitting Spriegl evidence of an earlier assault.  The district court in fact excluded that evidence.  Appellant also  challenges the district court’s admission of witness identifications.  The circumstances of the identifications in this case were not suggestive and, given the witnesses’ opportunity to see and remember the suspects, there was no substantial likelihood of irreparable misidentification.  State v. Griffin, 336 N.W.2d 519, 524 (Minn. 1983) (one-person show-up was permissible because the witness could accurately see, remember and describe the offender).           

            Appellant further claims that the DNA findings were inconclusive and the expert’s testimony was untrustworthy.  The jury is in the best position to assess the expert’s credibility and the validity of the DNA-test results.  See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980).  The jury in this case apparently found the DNA evidence reliable.  

            Finally, appellant claims that the prosecutor committed misconduct by drawing inferences from the facts during closing argument, but did not object at trial. Where a claim of prosecutorial misconduct is sufficient, this Court may review it despite appellant’s failure to object at trial.  State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997).  While a prosecutor may not seek a conviction “at any price,” it is permissible to argue all reasonable inferences from the evidence in the record.  State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).     

            The prosecutor argued that DNA-test results showing Pyle’s blood on appellant’s clothes, hand and the knives supported the inference that appellant had a knife and that appellant’s proximity to the SUV suggested he was close enough to stab the victim.  These inferences have a basis in the record.  Accordingly, there is no misconduct at all, let alone misconduct warranting our further review. 

                  Affirmed.