This opinion will be unpublished and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

C7-99-1952

 

 

State of Minnesota,

Respondent,

 

vs.

 

Mareo Lee Mullen,

Appellant.

 

 

Filed August 1, 2000

Affirmed

Schumacher, Judge

 

Hennepin County District Court

File No. 9807558

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

William R. Kennedy, Leslie J. Rosenberg, 1401 West 76th Street, Suite 400, Richfield, MN 55423 (for appellant)

 

 

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.*

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

SCHUMACHER, Judge

Appellant Mareo Lee Mullen appeals from his conviction and sentencing for kidnapping. The complaint charged him with three counts of aiding and abetting kidnapping and one count of aiding and abetting second-degree assault. Mullen was found guilty by jury on two of the kidnapping charges and acquitted on one of the kidnapping charges and the assault charge. He was sentenced by the trial court to a term of 86 months in prison in accordance with the sentencing guidelines. We affirm.

FACTS

This case arose from an incident in July 1998 when 16-year-old T.T. was abducted, held against her will for several days, repeatedly beaten and sexually assaulted. Several individuals were involved in the crimes committed against T.T. including Maurice Graham and Michelle Anderson. Mullen's involvement included transporting T.T. against her will to two separate locations in Wright County where Graham, Anderson, and two other codefendants assaulted her. After these assaults, Mullen drove her back to Graham's home in Minneapolis. During the drive to Minneapolis, T.T. was again assaulted and her jewelry was taken. Mullen told Graham that he did not want any further involvement with T.T., but when they arrived at the home in Minneapolis, Mullen recommended that Graham and Anderson "clear the house" of other people before they brought T.T. inside. Mullen waited in the car with T.T.

Approximately one-half hour later, Mullen, Graham, and Anderson again transported T.T. against her will to another location. Mullen was left alone in the vehicle with T.T. while Graham and Anderson obtained a gun. T.T. pleaded with Mullen to let her go, but Mullen refused. Mullen indicated that Graham and Anderson planned to kill her and that if he let her escape they would kill him. After Graham and Anderson obtained the gun, Mullen drove everyone back to Graham's home.

At some point, Mullen left the house, but he returned later in the day. When he returned, T.T. heard Mullen say to Graham that he should let T.T. go. Graham began yelling at Mullen and told Mullen to leave the house. Before Mullen left, he came into the room where T.T. was being held and told her that he would come back and help her.

Mullen came back to the house again. T.T. believed it was Monday or Tuesday. Graham was not home at the time, but Anderson and two other women were there. Mullen spoke with T.T. and told her she had to find a way to escape because the rest of the group was planning to kill her. She told Mullen that she had tried to get the screen off the window but that it would not come off. Mullen told her that he would get her a razor to cut the screen, but he never did. T.T. pleaded with Mullen to help her escape and asked him to walk her out of the house and tell the women that Graham had instructed him to take her somewhere. Mullen refused to do this. T.T. also showed Mullen the wounds on her back, hoping to convince him to help her. Once again, Mullen refused to help and eventually left.

Mullen did not return to the house again. T.T. was kept in the house from Saturday until Wednesday morning, July 22, 1998. During this time, she was raped, threatened with harm, bound, and otherwise physically assaulted. On the morning of July 22, 1998, T.T.'s captors stripped her of her clothing, handcuffed and gagged her, and wrapped masking tape around her head. A pillowcase was then secured over her head and she was placed in the back of a station wagon. One of her captors hit her in the head with a hammer several times. She was then taken to a construction site and told to kneel next to a hole. When she complied with this demand, she was kicked and fell into the hole. She was able to get out of the hole and made her way to a street where a woman found her and called police.

D E C I S I O N

1. Mullen contends there is insufficient evidence to support his conviction. In considering a claim of insufficient evidence, this court's review is limited to an analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Mullen contends that the trial court's instruction regarding accomplice liability was incorrect and that when the law is properly considered, there is insufficient evidence to support his conviction. The trial court's instruction on the law of accomplice liability was consistent with the statute and model jury instruction covering this type of criminal liability. See Minn. Stat. 609.05 (1996); 10 Minnesota Practice, CRIMJIG 4.01 (1999). Nonetheless, Mullen contends, without citing any authority, that for an individual to be guilty of aiding or abetting another in a criminal act, the accused must possess the same intent as the principal.

For a defendant to be convicted of aiding and abetting another, the defendant need not possess the same mens rea as the principal. The issue of intent for accomplice liability is

not whether defendant intended to agree, accept or assent to what was happening but whether he in some way, by word or deed, intentionally participated in the [offense] or in some way encouraged or aided the others.

 

State v. Hayes, 431 N.W.2d 533, 535-36 (Minn. 1988).

There is sufficient evidence to support Mullen's conviction. For example, T.T. was placed into Mullen's car against her will. Mullen drove the car to Albertville and discussed with Graham where to stop the car. He and Graham picked a second, more secluded place to bring T.T. Mullen drove her back to Minneapolis against her will and when they arrived at 5149 Vincent Avenue, he recommended to Graham that Graham "clear the house" before they brought T.T. back inside. Mullen did not do anything to prevent the assaults inflicted against T.T. while she was in the car or under the control of her captors. He did not do anything to help her escape from the car or her captors.

The jury reasonably found that Mullen possessed the intent to aid and abet others in T.T.'s kidnapping. The evidence establishes that Mullen played a knowing role in the commission of a crime, i.e., he transported T.T. from one location to another against her will and he did nothing to prevent completion of the crime. See State v. Pierson, 530 N.W.2d 784, 788 (Minn. 1995) (holding that a "jury may infer the requisite mens rea for a conviction of aiding and abetting when the defendant plays some knowing role in the commission of the crime and takes no steps to thwart its completion").

2. Mullen also contends that the district court erred when it provided the jury with a definition of duress during final instructions. The trial court has "considerable latitude" in the selection of language for the jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). A district court's decision to give a particular instruction will not be reversed absent an abuse of the district court's broad discretion. See State v. Peou, 579 N.W.2d 471, 476 (Minn. 1998) (noting that trial court has "significant discretion" in crafting jury instructions).

Mullen objected to the trial court's decision to provide the jury with the legal definition of duress because he contended that he was not arguing duress. Duress is an affirmative defense that eliminates a defendant's criminal liability if the defendant participated in the crime only because of a co-defendant's threat of immediate death. Minn. Stat. 609.08 (1996). In response to Mullen's objection, the trial court acknowledged that Mullen was not claiming the defense of duress, but it indicated that it was providing the definition based on his testimony. Mullen now argues that the trial court's decision caused the jury to presume that he acted with intent because he contends that duress admits intent. See State v. Link, 289 N.W.2d 102, 107 (Minn. 1979). As Mullen argues in his brief, "[b]eing instructed on duress, the jury would have deliberated whether Appellant's acts were justified instead of whether Appellant intended to kidnap."

As discussed above, the state did not have to prove that Mullen intended to kidnap T.T. Rather, it was required to prove that he intended to aid or abet others in kidnapping her. Minn. Stat. 609.05. Furthermore, Mullen's reliance on Link for the proposition that duress admits intent is not consistent with more recent supreme court caselaw. The court in State v. Charlton, 338 N.W.2d 26, 30-31 (Minn. 1983), held that once a defendant raises duress through the evidence he introduces, the burden is on the state to "show lack of duress, or its converse, specific intent" beyond a reasonable doubt. We find Charlton to be controlling in this case and hold that a defendant's claim of duress or a trial court's instruction on the definition of duress does not relieve the state of its burden to prove intent.

We find no error in the trial court's decision to instruct the jury on the definition of duress. It is the district court's responsibility in the final instructions to "state all matters of law which are necessary for the jury's information in rendering a verdict." Minn. R. Crim. P. 26.03, subd. 18(5). The trial court properly instructed the jury on the prosecution's burden of proof. It was not error to define the term duress for the jury.

3. Mullen also contends that the trial court erred by permitting the state to impeach his credibility with a prior conviction. A trial court's ruling on the impeachment of a witness by a prior conviction is reviewed, as are other evidentiary rulings, under a clear abuse of discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Whether the probative value of the prior convictions outweighs their prejudicial effect is a matter within the discretion of the district court. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985). The trial court's decision will not be reversed absent a clear abuse of discretion. Id. at 209.

A defendant's credibility may be impeached with evidence of a prior felony conviction if the probative value of the evidence outweighs its prejudicial effect. Minn. R. Evid. 609(a). The court's determination as to whether the probative value outweighs the prejudicial effect is guided by a five-factor test first set out in State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).

The trial court limited the state to inquiring as to whether Mullen had been convicted of a felony and whether he was on probation at the time of the incident in this case. Mullen's credibility was at issue because he chose to testify and portray his role in the offense as one of an unwilling participant. The trial court's conclusion that the probative value of the prior conviction outweighed any prejudicial effect was clearly correct and not an abuse of discretion.

4. Finally, Mullen contends that the trial court erred in denying his motion for a downward departure from the sentencing guidelines. Only in a "rare" case will a reviewing court reverse a trial court's imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). A decision on whether or not to depart from the sentencing guidelines is within the discretion of the trial court and will not be reversed absent an abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

We hold that the trial court did not abuse its discretion when it imposed a guidelines sentence in this case. Mullen's crimes may not have been as serious as some of the other crimes perpetrated against T.T., but this is not a basis for granting a downward departure.

Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.