This opinion will be unpublished and

may not be cited except as provided by

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







In the Matter of the
Welfare of:  M.P.Y.



Filed August 22, 2000

Affirmed in part; dismissed in part
Klaphake, Judge


Hennepin County District Court

File No. JX-99-55186



John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN  55414-3230 (for appellant M.P.Y.)


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


Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Ctr., Minneapolis, MN 55487 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant M.P.Y., a juvenile, appeals from an extended jurisdiction juvenile (EJJ) adjudication of delinquency after he was found to have committed two counts of first-degree aggravated robbery.  On appeal, M.P.Y. (1) challenges the sufficiency of the evidence;  (2) challenges the propriety of his sentence for two counts of robbery where there was only “a single robbery” but two victims; (3) claims the court erred in precluding him from testifying on an alleged alibi as a sanction for failing to provide the prosecution any notice of an alibi defense; (4) claims that his counsel was ineffective for failing to provide the prosecution notice of his alibi defense; and (5) claims this court erred in declining to remand for an evidentiary hearing on claims of newly discovered evidence and discovery violations.  Because we conclude that the evidence is sufficient to support M.P.Y.’s conviction, the sentence is supported by the law and does not exaggerate the criminality of M.P.Y.’s conduct, the sanction preventing M.P.Y. from testifying as to an alibi defense was not an abuse of discretion, and the claims of newly discovered evidence and discovery violations were not properly supported either factually or legally, we affirm as to those issues.  Because the claim of ineffective assistance of counsel is better raised in a petition for postconviction relief and not on direct appeal, we dismiss that issue.  



            In examining a sufficiency-of-the-evidence claim, appellate review

consists of a very thorough analysis of the record to determine whether the evidence, viewed in a light most favorable to the jury’s verdict, was sufficient to permit the jury to reach its verdict.


State v. Spann, 574 N.W.2d 47, 54 (Minn. 1998) (citation omitted).  We review such a claim in a juvenile delinquency trial under the same standard of review as a jury verdict in a criminal case.  See In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).

            M.P.Y. contends the evidence was insufficient because it was based on circumstantial evidence that did not prove that he robbed a Tom Thumb convenience store in Minneapolis.  On review of a conviction derived from circumstantial evidence, the appellate court will uphold the conviction

if a detailed review of the record indicates that the reasonable inferences from such evidence are consistent only with the defendant’s guilt and inconsistent with any other rational hypothesis.


State v. LaHue, 585 N.W.2d 785, 788 (Minn. 1998) (citation omitted); State v. Spaeth, 552 N.W.2d 187, 192 (Minn. 1996) (noting that “conviction based on circumstantial evidence * * * merits stricter scrutiny”).

            We conclude that the circumstantial evidence of M.P.Y.’s guilt, viewed in the light most favorable to the jury’s verdict, was sufficient to permit a reasonable jury to have found him guilty.  The state provided strong evidence linking M.P.Y. to the crime.  He and his companion, C.A.O., closely matched the descriptions of the suspects.  They were apprehended about a mile from the store and several blocks from where the robbers had dropped some of their clothing, the pellet gun used in the robbery, and some small denomination bills.  At the time they were stopped, M.P.Y. and C.A.O. were sweating and acting suspicious, looking at each other before answering questions and, in M.P.Y.’s case, attempting to cast aside his hat.  Importantly, they were discovered with a gun ammunition cylinder and loose bills totaling $117 stuffed in C.A.O.’s pocket, and M.P.Y. admitted that he recognized the cylinder as belonging to C.A.O.’s brother’s pellet gun.  While the testimony was not precise on the timing of M.P.Y.’s arrest in relation to the robbery, the record suggests an immediate police response and quick arrest.  This evidence is sufficient to establish M.P.Y.’s guilt.  See State v. Schneider, 597 N.W.2d 889, 895 (Minn. 1999) (evidence supporting conviction based on circumstantial evidence must form “complete chain” leading to defendant’s guilt).                  


            M.P.Y. next claims that one of his convictions and the 48-month concurrent sentence should be vacated because the robbery was a single offense for which there can only be one sentence.  Generally, if a person’s conduct constitutes more than one offense but arises out of the same behavioral incident, the person may be punished for only one offense.  Minn. Stat. § 609.035, subd. 1 (1998).  A judicially created exception applies, however, if there are multiple victims.  State v. Lundberg, 575 N.W.2d 589, 591-92 (Minn. App. 1998), review denied (Minn. May 20, 1998).  If an offense involves multiple victims, the sentencing court “can impose one sentence per victim as long as the multiple sentences ‘do not unfairly exaggerate the criminality of the defendant’s conduct.’”  State v. Keeton, 573 N.W.2d 378, 385 (Minn. App. 1997) (quoting State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988)).  The district court’s sentencing decision is discretionary, and an appellate court generally will not reverse when the sentence imposed is “within the guidelines range.”  Keeton, 573 N.W.2d at 385.

            We conclude that M.P.Y.’s sentence does not exaggerate the criminality of his conduct.  At the time of the robbery, two victims were present, the cashier and the assistant store manager, both of whom had control over the cash register.  While the gun was pointed only at the cashier, one of the robbers allegedly told the other to “watch” the assistant manager, who was some distance away.  Further, as M.P.Y.’s sentence was concurrent, rather than consecutive, it was not as harsh as sentences imposed in other multiple-victim robbery cases.  See Norris, 428 N.W.2d at 70-71 (“In numerous cases involving aggravated robbery, assault, and multiple victims, we have allowed consecutive sentences to stand.”).  The sentence imposed here does not exaggerate the criminality of M.P.Y.’s conduct.  See State v. Williams, 337 N.W.2d 387, 389 (Minn. 1983) (upholding multiple consecutive sentencing in case where defendant was convicted of two counts of aggravated robbery after robbing two victims).


            Minn. R. Juv. P. 10.05, subd. 1(C)(1) requires a child charged in an EJJ proceeding to provide the prosecution with notice of any alibi defense.  See Minn. R. Juv. P.  10.01 (making rule 10 applicable to EJJ proceedings).  Here, defense counsel provided the prosecutor with no notice of an alibi defense, but in his opening statement he outlined an alibi defense, stating:

[M.P.Y. and C.A.O.] went to visit an aunt at approximately 33rd and 16th street.  There’s an apartment building there.  And that’s where they were on the evening hours between 8 and 9 o’clock. 

At some point they decided to leave and return to [M.P.Y.’s] house which is located here (indicating).  Behind the apartment, you will hear, there’s an alley (indicating).  They walked through the alley, crossed 31st Street and suddenly they were confronted by police * * *.


The court found that the statement was an attempt to offer an alibi and prohibited M.P.Y. from testifying “as to where he was immediately preceding this event.”   

            In State v. Patterson, 587 N.W.2d 45, 51 (Minn. 1998), the Minnesota Supreme Court held that the trial court did not abuse its discretion in precluding a defense alibi witness from testifying when the defense failed to disclose the witness as required by rule 9.02.  The court also reiterated that “courts have broad discretion in imposing sanctions for violations of the discovery rules” and reaffirmed that a court should consider the four factors set forth in State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979), to determine an appropriate sanction for nondisclosure of a witness.  Patterson, 587 N.W.2d at 50.  Those factors include:

(1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.


 Lindsey, 284 N.W.2d at 373.  A trial court’s decision to preclude testimony “is a severe sanction which should not be lightly invoked.”  Patterson, 587 N.W.2d at 50 (quotation omitted).

            Application of the Lindsey factors supports the court’s decision in this case.  First, defense counsel’s reason for failing to disclose the alibi defense was that he did not think the alibi rules applied to the defendant’s testimony.  The rule, however, explicitly requires notice of defenses as well as of defense witnesses.  Minn. R. Juv. P. 10.05, subd. 1(C)(1).  Further, the record indicates that the prosecutor specifically requested proper notice, but defense counsel failed to respond.  The reason for the failure to disclose does not support defense counsel’s nondisclosure.

Second, as the court concluded, the state was prejudiced by the defense’s failure to disclose the alibi defense.  The state was unprepared to meet this defense.  M.P.Y. wished to testify that he was at C.A.O.’s aunt’s apartment just prior to his arrest, that he was arrested between his home and her apartment, and that their purpose in being at the aunt’s apartment was to allow C.A.O. to cash a check.  This evidence could have established an alibi that would have been unassailable by the prosecution.  Had the court merely granted a continuance to allow the prosecution to prepare to meet such a defense, no sanction would have been imposed for the violation.  See Lindsey, 284 N.W.2d at 373-74 (where defense failed to disclose six of eight witnesses it intended to call for trial, court sanctioned defense by disallowing testimony of two witnesses, concluding, in part, that any other sanction would not be meaningful).

Third, the state argues that the feasibility of rectifying any prejudice by the granting of a continuance was remote because it had already established its theory of the case during its investigation, set forth that theory in its opening statement, and prepared to elicit evidence to support that theory at trial.  While this point is weak in comparison with the first two Lindsey factors, it is also supported by the purpose of disclosure mandated by the discovery rules—to “enhance the search for truth.”  Lindsey, 284 N.W.2d at 372 (quotation omitted).

Finally, other relevant factors also support the sanction in this case.  The sanction was tailored specifically to respond only to the rule violation--M.P.Y. was not prohibited from testifying, only from testifying about his alibi defense.  We conclude that the trial court did not abuse its discretion in prohibiting M.P.Y. from testifying as to an alibi defense as a sanction for defense counsel’s failure to disclose that defense.  See Patterson, 587 N.W.2d at 51 (trial court did not abuse its discretion in precluding witness from testifying where defense counsel failed to disclose witness); Lindsey, 284 N.W.2d at 374 (same); State v. Irwin, 379 N.W.2d 110, 114 (Minn. App. 1985) (same), review denied (Minn. Jan. 23, 1986).


            M.P.Y. next contends that he should be granted a new trial because his counsel was ineffective for failing to provide notice of his alibi defense.  A defendant who seeks a new trial on the ground of ineffective assistance of counsel must now generally raise the issue “in a postconviction petition for relief, rather than on direct appeal.”  State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000); see also State v. Bjork, 610 N.W.2d 632, 633 n.3 (Minn. 2000).  In Gustafson, the supreme court noted that “[a] postconviction hearing provides the court with ‘additional facts to explain the attorney’s decisions,’ so as to properly consider whether a defense counsel’s performance was deficient.”  Gustafson, 610 N.W.2d at 321 (quotation omitted).  In light of this mandate and reasoning, we decline to reach M.P.Y.’s ineffective assistance of counsel claim. 


            Finally, M.P.Y. asks that this case be remanded to allow a record to be made on claims of newly discovered evidence and discovery violations.  This issue was discussed in this court’s order of March 7, 2000, in which this court stated:

Appellant has not cited any legal authority entitling him to postconviction proceedings at this time.  Neither has he shown any entitlement to an evidentiary hearing under the juvenile rules.  See Minn. R. Juv. P. 16.01, subd. 3(A) (providing that motion for a new trial must be filed within fifteen days after finding of delinquency).


M.P.Y. has not further enlightened this court on his legal basis for seeking this relief since issuance of the March 7 order.  Thus, M.P.Y. has not demonstrated a legal basis for a remand on these claims.        

            Affirmed in part; dismissed in part.


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