This opinion will be unpublished and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
William Joseph Eggert,
Filed June 6, 2000
Nicollet County District Court
File No. K398329
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Michael K. Riley, Nicollet County Attorney, 424 South Minnesota, P.O. Box 360, St. Peter, MN 56082 (for respondent)
John M. Stuart, State Public Defender, D. Adrian Bryan, Special Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
William Joseph Eggert, 7525 Fourth Avenue, Lino Lakes, MN 55014 (pro se appellant)
Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from his convictions and sentence for simple robbery and third-degree assault, appellant William Joseph Eggert challenges the sufficiency of the evidence and argues that the trial court incorrectly calculated his criminal history score. Respondent State of Minnesota moves to strike a portion of Eggert’s pro se supplemental brief. We affirm and grant the motion to strike.
Eric Guthrie worked part-time as a bartender at Patrick’s bar in St. Peter. On the evening of May 17, 1998, Guthrie left Patrick’s after finishing his shift but returned to the bar at about 10:00 p.m. That evening, Eggert and three of his friends, Eric Geisthardt, Jason Ewert, and Alan Mehltretter, came to the bar for karaoke night.
When Guthrie returned to the bar, the bartender, Kari Lind, asked him to take her place so that she could visit with some friends. While Guthrie tended bar, Eggert flirted with Lind and waitress Elaine Krueger, and showed them his tattoos. He also flirted with Quita Dunbar, who was Guthrie’s roommate and the karaoke hostess, asked her for a date, and got her phone number. When Lind returned to tend bar, Guthrie sat down at the bar.
While Guthrie was sitting at the bar, he began talking with Eggert. Eggert made sexual advances toward Guthrie and suggested that the two of them rent a motel room and have sex. Guthrie agreed and went to his apartment to get $120 to pay for the motel room. Dunbar testified that while Guthrie was gone, Eggert told her that he was going to beat up Guthrie and take his money. Dunbar did not warn Guthrie.
After Guthrie returned to the bar, he, Eggert, and Geisthardt went outside to talk. As they talked, the three men walked to an unlighted alcove where the bar’s dumpsters were located. Eggert told Geisthardt to go away so he and Guthrie could talk privately, and Geisthatdt left. Eggert asked to see the money, and when Guthrie showed it to him, suggested that Guthrie pay him for having sex. Guthrie became nervous and wanted to go back inside the bar. Before he could do so, Eggert punched him between the eyes, knocking him to the ground and breaking his glasses. Guthrie threw the money at Eggert, hoping that Eggert would stop hitting him, but Eggert continued to beat and kick Guthrie until Guthrie lost consciousness. Geisthardt testified that he returned to the alcove and pulled Eggert away from Guthrie. Geisthardt, Eggert, and Ewert then left for Janesville. They stopped in North Mankato to visit a woman who knew Eggert. Geisthardt testified that in the car, Eggert bragged about beating Guthrie and taking his money.
Guthrie regained consciousness and returned to his apartment sometime during the night. Kirstin Romer, another roommate, awoke at 6:00 a.m., found Guthrie covered with blood, and called several friends for help. Guthrie discovered that his money, checkbook, driver’s license, and credit card were missing and called the police to report that he had been mugged. Friends took Guthrie to the hospital, where he was treated for his injuries.
On May 20, Sergeant Jerold Yushta prepared a photographic line-up that included pictures of both Eggert and Geisthardt. Guthrie immediately picked Eggert as his assailant. Dunbar, Lind, and Krueger identified Eggert as the person who talked with Guthrie at the bar the night of the attack.
Eggert was charged with one count of simple robbery in violation of Minn. Stat. § 609.24 (1998), and one count of third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (1998).
At trial, Eggert’s defense was that Geisthardt had assaulted Guthrie and that Eggert had separated the men. He called two witnesses to support this defense. Raymond Armendariz, Eggert’s roommate, testified that he was awakened during the afternoon of May 18th by Geisthardt’s loud voice and that Geisthardt bragged about beating Guthrie. Alan Mehltretter testified that he was also present on May 18, and Geisthardt bragged about committing the assault and displayed Guthrie’s checkbook and driver’s license. Mehltretter had told the police before trial that he knew nothing about the attack, but asserted in court that he was telling the truth. Eggert did not testify. The jury found him guilty of both counts.
The district court vacated Eggert’s third-degree assault conviction, imposed an executed sentence of forty-eight months for the simple robbery, and ordered restitution. Eggert challenged his criminal history score, which had been calculated during the pre-sentence investigation. He argued that although he had convictions in 1995 for terroristic threats and harassment/stalking, he was given only one sentence for the two offenses because they involved a single course of conduct, and, therefore, his criminal history score should be five, rather than six. Following a hearing, the district court denied Eggert’s motion to reduce his criminal history score.
1. Sufficiency of the Evidence
Eggert argues that the eyewitness-identification evidence presented to the jury was unreliable and insufficient as a matter of law to support his conviction. He contends that the state failed to prove beyond a reasonable doubt that he was the person who committed the offense. We disagree.
To warrant a conviction, the state must prove “beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged * * * .” State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957). In reviewing a claim of insufficient evidence in a criminal case, this court determines whether,
under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged.
State v. Race, 383 N.W.2d 656, 661 (Minn. 1986) (citations omitted). We review the evidence in the light most favorable to the conviction and assume “the jury believed the state’s witnesses and disbelieved any contrary evidence.” Id. We will not set aside a verdict if the jury, acting with due regard for the presumption of innocence and the necessity to overcome that presumption by proof beyond a reasonable doubt, could reasonably have concluded that the defendant was guilty. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Identification is a question of fact for the jury to determine. State v. Otten, 292 Minn. 493, 494, 195 N.W.2d 590, 591 (1972). Identification testimony need not be absolutely certain; it is sufficient if the witness expresses a belief that he saw the defendant commit the crime. State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969). “[A] conviction can rest upon the testimony of a single credible witness.” State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (citation omitted). The factors relevant to evaluating an identification include:
(1) the witness’s opportunity to see the defendant at the time the crime was committed; (2) the length of time the assailant was in the witness’s view; (3) the stress the witness was under at the time of the crime; (4) the lapse of time between the crime and the witness’s identification; and (5) the effect of the police procedures as either testing the witness’s identification or simply reinforcing the witness’s initial identification of the defendant as the one who committed the crime.
State v. McAdory, 543 N.W.2d 692, 695-96 (Minn. App. 1996) (quoting Burch, 284 Minn. at 315-16, 170 N.W.2d at 553-54).
Guthrie spent time with Eggert inside the bar, went outside with him to talk, watched Geisthardt walk some distance away, and was talking with Eggert when the first blow was struck. On May 20, 1998, less than two days after the incident, Guthrie immediately picked Eggert’s picture out of a photographic line-up that also included Geisthardt’s picture. Other witnesses who viewed the photo display identified Eggert as the person who was talking with Guthrie in the bar before the attack. At trial, Guthrie identified Eggert as his assailant with “absolutely no doubt.” The jury could reasonably conclude from this evidence that Eggert committed the offense.
Eggert argues that Dunbar’s testimony is suspect because she did not mention until trial that he told her that he was going to beat up Guthrie and take his money. Eggert also contends that the testimony presented by Armendariz and Mehltretter indicated that Geisthardt committed the assault. But it is for the jury to weigh the credibility of the witnesses. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). The jury could find Dunbar’s testimony credible and Armendariz’s and Mehltretter’s testimony not credible.
2. Criminal History Score
At the sentencing hearing, Eggert argued that his criminal history score had been computed incorrectly and should be reduced from six to five. In 1995, Eggert was sentenced to 25 months in prison after being convicted of terroristic threats and harassment. He contends that the sentence was for one continuous course of conduct and, therefore, the convictions should only add one point to his criminal history score. Eggert argues that the 1995 sentencing court implicitly ruled that there was one conviction. The current trial court reviewed the transcript of the 1995 sentencing and determined that the offenses were against two separate victims and resulted in two convictions.
The district court’s determination of a defendant’s criminal history score will not be reversed absent an abuse of discretion. Bolstad v. State, 439 N.W.2d 50, 53 (Minn. App. 1989).
In 1995, Eggert was convicted of open bottle, gross misdemeanor harassment, felony harassment, and felony terroristic threats. The court first imposed a 90-day sentence for open bottle and a one-year sentence for gross misdemeanor harassment. Then the following exchange occurred:
THE COURT: On the harassment\stalking, the guidelines call for twenty-five months; the terroristic threats call for twenty-five months, as outlined in the pre-sentence investigation. I am going to follow that recommendation, and you are committed to the Commissioner of Corrections for a period of twenty-five months. * * * All right. Anything else, Mr. Lenz.
MR. LENZ: Will he be given credit for time served, Your Honor.
THE COURT: Yeah. I gave him credit for the eighty-eight days—time served. Mr. Sinclair.
MR. SINCLAIR: Any part of the ninety days or the one year for the gross consecutive to the twenty-five months which I presume is concurrent.
THE COURT: Yeah. They are concurrent.
MR. SINCLAIR: And so is the ninety –
THE COURT: Yes.
The district court did not abuse its discretion when it determined Eggert’s criminal history score. The transcript supports a conclusion that four concurrent sentences were imposed.
3. Pro se Supplemental Brief
The state has moved to strike the portion of Eggert’s pro se supplemental brief that sets forth his version of the facts, arguing that it contains matters outside the record on appeal. The record on appeal consists of “[t]he papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.” Minn. R. Crim. P. 28.02, subd. 8. Because Eggert did not testify at trial, and his version of the facts is not included in the transcript, we grant the state’s motion to strike.
Eggert points out inconsistencies in the testimony of several of the state’s witnesses. But “inconsistencies in the state’s case will not require a reversal of the jury verdict.” Pieschke, 295 N.W.2d at 584.
Eggert contends that he received ineffective assistance of counsel. An appellant alleging ineffective assistance of counsel “must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984). Eggert makes no showing that his counsel’s representation fell below an objective standard of reasonableness. Eggert also fails to explain how representation by a “more professional” attorney would have led to an acquittal. Eggert claims that the prosecutor committed misconduct at trial, but fails to support his claim with evidence of any action rising to the level of misconduct.
Affirmed; motion granted.