This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-00-1328

 

 

State of Minnesota,

Respondent,

 

vs.

 

Joel Ryan Bergren,

Appellant.

 

 

Filed April 17, 2001

Affirmed; motion granted in part

Lansing, Judge

 

St. Louis County District Court

File No. K799603178

 

 

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

 

Alan L. Mitchell, St. Louis County Attorney, 501 Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury found Joel Bergren guilty of possession of a firearm by a felon, first-degree burglary, attempted aggravated robbery, and second-degree assault.  On appeal from conviction, Bergren challenges the sufficiency of evidence to corroborate accomplice testimony, disputes the duration of his sentence for the burglary conviction, and raises additional issues in a pro se brief.  Because corroborating evidence sufficiently supports the accomplice testimony, the sentence is within the district court’s discretion, and the pro se brief provides no basis for reversal, we affirm.

FACTS

Duluth police officers arrested Joel Bergren for burglary, robbery, assault and possession of a firearm.  The police were responding to a complaint about a loud car when they encountered the crime victim running from his home, where he had been shot and stabbed.  Police also arrested two accomplices, Nick Worden and Matthew Johnson.  Both accomplices testified at Bergren’s trial.

According to the testimony at trial, earlier in the morning of his arrest, Bergren had met with Worden, Johnson, and a fourth person, David Chinn.  Bergren suggested going to the victim’s house to get money or marijuana.  The four drove in Johnson’s car to a house where Worden kept a gun.  While in the car, Bergren showed Chinn a knife with a sheath.  When they arrived at the house, Worden went in and returned to the car with a black 9-millimeter handgun.  Chinn saw the gun and asked to be dropped off at his home because he did not want to be involved.

            After Chinn got out of the car, Bergren directed Johnson to the victim’s house.  Uncertain whether the victim was home, Bergren and Worden told Johnson to drive to a nearby restaurant with a pay phone.  Bergren confirmed that the victim was home, and the three drove back to the victim’s house.  Bergren and Worden exchanged weapons, Bergren taking the gun and Worden taking the knife.  Johnson stayed in the car while Bergren and Worden went up to the house.  At some point, Bergren and Worden covered their faces with masks.

At the rear of the house, Bergren and Worden used a propane tank to break down the back door. They ran in, Bergren yelling, “Police!”  Worden stood in the kitchen while Bergren entered the victim’s bedroom, where the victim was preparing to jump out a window.  Bergren shot him.  The two struggled and ended up on the floor in the kitchen next to Worden.  When the victim got up to run from the house, Worden stabbed him.

The victim ran out of the house into the street, where he was observed by Duluth police officers who had responded to a complaint about Johnson’s loud car.  Bergren and Worden ran out of the house immediately after the victim.  Worden ran for some distance, discarding first the knife and then the knife sheath four blocks from the knife.  He later directed police to where the knife and sheath were thrown.  Bergren also ran for some distance.  An officer investigating the victim’s house tracked one of two sets of fresh footprints leading from the back door and apprehended Bergren.

Following trial and conviction, Bergren appeals, contending that (1) the evidence is insufficient to corroborate the testimony of his accomplices, (2) the district court erred in computing his criminal history score, (3) no aggravating factors support an upward durational departure on the burglary conviction, and (4) objections raised in his pro se brief warrant reversal.

D E C I S I O N

I

When evaluating the sufficiency of evidence to corroborate an accomplice's testimony, this court must view the corroborating evidence in the light most favorable to the verdict and resolve any conflicts in favor of the verdict.  State v. Norris, 428 N.W.2d 61, 66 (Minn. 1988).  Corroborating evidence is sufficient if it fairly supports the inference that the defendant was connected to the crime.  State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995).  It is also sufficient if it restores confidence in the accomplice’s testimony and thereby confirms its truth and points to the defendant’s guilt in some substantial degree.  State v. Landro, 504 N.W.2d 741, 746 (Minn. 1993). 

Bergren argues that there is insufficient corroboration of (1) Johnson’s testimony that Bergren and Worden exchanged weapons so that Bergren had the gun and Worden had the knife, (2) Worden’s testimony that Bergren was in the victim’s house, and (3) Worden’s testimony that Bergren shot the victim.  We disagree.

First, David Chinn, who was not an accomplice, testified that Bergren showed him a knife and that Worden picked up a gun.  Police officer James Matson testified that he later found the knife after being directed by Worden to the location where he threw it.  The testimony of Chinn and Matson inferentially supports the accomplice testimony that Worden had the knife and, in turn, restores confidence in Johnson’s testimony that Bergren and Worden exchanged weapons.

Second, the victim testified that while the two masked individuals were in his house, he “had an idea,” based on voice and physical appearance, that one of the intruders was Bergren, whom he had met before.  Chinn testified that Bergren, Worden and Johnson were “looking for weed, marijuana,” which is consistent with the testimony of Worden and Johnson that Bergren suggested they go to the victim’s house to get money or marijuana.  Police officer Steven Peterson testified that he saw two sets of fresh footprints “out the back door” of the victim’s house.  Police officer Ronald Lenio testified that one set of those footprints matched inked impressions of Bergren’s shoes.  This combined testimony is sufficient to restore confidence in Worden’s testimony that Bergren was in the house.

Finally, taking together the testimony corroborating the weapon exchange and the testimony corroborating Bergren’s presence in the house, the corroborative testimony has sufficient weight to restore confidence in Worden’s testimony that Bergren shot the victim.

II

Bergren argues that because possession of the firearm and the burglary are part of a single behavioral incident, the district court erred in counting the firearm conviction as part of his criminal history score in determining his burglary sentence.

Minn. Stat. § 609.035 (2000) generally prohibits multiple sentences for offenses resulting from the same behavioral incident.  State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000).  The statute excepts specific offenses, including the offense of which Bergren was convicted, possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2000).  Minn. Stat. § 609.035, subd. 3 (2000).  Bergren acknowledges that the statute permits separate sentencing for possession of a firearm and burglary.  But he disputes that the exception applies to calculating criminal history scores under Minn. Sent. Guidelines II.B.  Bergren maintains that when offenses arise from the same behavioral incident the criminal history score for both offenses must remain the same even if one offense occurred before the other within the behavioral incident.

Bergren’s argument is credible, but we do not find it entirely persuasive.  The supreme court has held that the Hernandez method of calculating criminal history scores embodied in Minn. Sent. Guidelines II.B “cannot be used to increase the criminal history score of a subsequent sentence unless the convictions arose from a different course of conduct under section 609.035.”  State v. Soto, 562 N.W.2d 299, 302 (Minn. 1997) (citations omitted).  But the legislature expressly provided an exception to the same-behavioral-incident rule for firearms offenses.  Minn. Stat. § 609.035, subd. 3.  The statutory exception demonstrates a legislative intention to treat firearms offenses differently from other offenses that are part of the same course of conduct.

This view of legislative intention is consistent with the primary purpose of Minn. Stat. § 609.035 to ensure that punishment is commensurate with culpability, but not to exaggerate the criminality of the conduct.  Soto, 562 N.W.2d at 302.  The firearms offenses that the legislature excepted from Minn. Stat. § 609.035 are possession offenses.  Minn. Stat. §§ 609.165 (2000), 624.713, subd. 1(b) (2000).  A firearm-possession offense occurs the instant an unauthorized person knowingly possesses or receives a firearm.  10 Minnesota Practice, CRIMJIG 32.17 (1999).  Because the illegal possession is independent of surrounding circumstances, the legislature could reasonably conclude that firearm-possession offenses are less susceptible to the unfair exaggeration of criminality that Minn. Stat. § 609.035 is intended to prevent.

The legislature has exclusive authority to define crimes and the range of punishments for their violation.  Minn. Stat. § 609.095 (2000); State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001).  The Minnesota Sentencing Guidelines is an expression of that authority.  Minn. Stat. § 244.09 (2000).  Consequently, we conclude that a defendant’s criminal history score under the guidelines should reflect the statutory firearm-possession exception.  Thus the offenses of possession of a firearm by a felon and burglary may be convicted and sentenced in the order in which they occurred, and the court may include the first-occurring offense in the criminal history score to determine the presumptive sentence for the second.  The district court did not err in following this procedure in sentencing Bergren.

III

            When aggravating circumstances are present, the district court has broad discretion to depart from the presumptive sentence and will not be reversed on appeal absent an abuse of discretion.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  A departure must be supported by substantial and compelling circumstances which make the crime either more or less serious than a typical case involving the same crime.  Minn. Sent. Guidelines II.D; State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). 

            The presumptive sentence for Bergren’s burglary conviction is 108 months.  Minn. Sent. Guidelines IV.  The district court imposed a 50% upward durational departure and sentenced Bergren to 162 months.  The court based the upward departure on three aggravating factors:  (1) the victim was treated with particular cruelty, (2) the crime was committed by a group of three or more, and (3) the crime was more onerous than the typical offense.

The district court did not abuse its discretion when it found that the victim was treated with particular cruelty.  Bergren shot the victim when he was attempting to flee his home and wrestled with him after he was shot, which provided Worden with an opportunity to stab him.  Bergren’s conduct was beyond that which is usually associated with a burglary-with-assault charge.  See State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (justifying durational sentence departure because of vicious nature of attack), review denied (Minn. Sept. 29, 1987).

            Because this aggravating factor is sufficient to support the departure, we do not address the other factors used by the district court to explain its departure.  State v. O'Brien, 369 N.W.2d 525, 527 (Minn. 1985) (one factor sufficient to justify double durational departure); State v. Magee, 413 N.W.2d 230, 234 (Minn. App. 1987) (one factor sufficient to justify 50% upward durational departure), review denied (Minn. Nov. 24, 1987).

IV

Bergren raises three additional issues in his pro se supplemental brief.  But we first consider the state’s motion to strike portions of the brief as containing matters outside the record.  The record on appeal consists of the papers filed in the district court, the offered exhibits, and the transcript of the proceedings, if any.  Minn. R. Crim. P. 28.02, subd. 8.  Matters outside the record on appeal may not be considered by this court and must be stricken.  State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001).

The portions that the state moves to strike are the appendix in its entirety and certain sentences in each of the three arguments presented by Bergren.  We decline to strike the appendix, which consists only of the victim’s written voluntary statement to police, and those portions of the brief that refer to the statement because the statement was contained in papers filed with the district court.  We strike the remaining portions because they contain matters outside the record.

A

Bergren’s first pro se argument is that he was denied effective assistance of counsel.  A defendant who claims ineffective assistance of counsel must prove that counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s defective performance, the outcome of the proceeding would have been different.  Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001).  On review, there is a strong presumption that an attorney acted competently.  Id.

Bergren raises four specific claims.  First, he contends that if defense counsel had told him of the footprint evidence before the trial, he “most likely” would have testified in his own defense.  But because the footprint evidence was introduced before the defense had its opportunity to present its case, Bergren had ample time to consider testifying.  And Bergren makes no claim that even if he had testified, the outcome of the trial would have been different.

Second, Bergren argues that had defense counsel effectively cross-examined the victim, the outcome of the trial would have been different.  Particular deference is given to strategic decisions of counsel.  State v. LaHue, 585 N.W.2d 785, 790 (Minn. 1998).  Although defense counsel’s cross-examination of the victim was not lengthy, counsel could reasonably have concluded that an extended cross-examination of the crime victim would be detrimental to Bergren’s case.

            Third, Bergren argues that defense counsel’s waiver of opening argument was prejudicial because the decision left counsel with only an opportunity to address the jury in closing argument.  But the defense presented no evidence or witnesses, making opening argument unnecessary, and counsel presented a comprehensive closing argument.  The bare fact that counsel spoke directly to the jury only once does not demonstrate prejudice.

            Fourth, Bergren argues more generally that defense counsel was hasty in all aspects of the trial, kept cross-examinations to a bare minimum, and was ineffective.  A careful review of the record shows that counsel acted competently.  The record does not support Bergren’s argument that he was denied his Sixth Amendment right to effective assistance of counsel.

B

Bergren contends that the district court erred by failing to notify him or defense counsel of the possibility of an upward departure.  In a sentencing proceeding, “[i]f the facts ascertained * * * through trial cause the judge to consider departure from the sentencing guidelines * * *, the court shall advise counsel of such consideration.”  Minn. R. Crim. P. 27.03, subd. 1(A)(4).  Lack of notice will not require reversal unless the defendant is prejudiced.  State v. Bock, 490 N.W.2d 116, 122 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).

            Both Bergren and defense counsel received at least constructive notice that departure would be considered because the state provided counsel with a copy of its motion for an upward departure at a motion hearing at which Bergren was present.  And both Bergren and defense counsel vigorously argued at the sentencing hearing against an upward departure from the sentencing guidelines.  Bergren has not demonstrated that any technical noncompliance with Minn. R. Crim. P. 27.03, subd. 1(A)(4), was prejudicial.

C

            Finally, Bergren argues that he was deprived of a fair trial because, allegedly, the victim has a family relationship with the chief judge of the district court and, as a result, the judge who tried the case had a conflict of interest.  This argument is not factually supported and has no legal merit.

            Affirmed; motion granted in part.