This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,


Ervie Dean Smith,


Filed October 30, 2001


Peterson, Judge



Hennepin County District Court

File No. 00031741


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


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


Ervie Smith, 205460, MCF - Stillwater, 970 Picket Street North, Bayport, MN  55003-1490 (pro se appellant)



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

U N P U B L I S H E D   O P I N I O N


In this appeal from sentences for first- and second-degree assault, appellant Ervie Dean Smith argues that a consecutive five-year sentence for a second-degree assault committed as part of the same behavioral incident as a first-degree assault exaggerated the criminality of his conduct.  Smith also submitted a pro se supplemental brief raising several issues and seeking to have his convictions overturned.  We affirm.



Jermaine and Vernitta Goodlow were married on February 25, 2000.  Following their wedding reception, they invited people to a party at their home.  The victims, Jason Hatcher and Jeffrey Thorpe, were at the party.  At about 1:30 a.m. on February 26, 2000, two men and two women showed up at the party.  Jermaine Goodlow introduced one of the men, who was later identified as Smith, to Hatcher and Thorpe.  One of the women with Smith was his girlfriend.  Smith got into an argument with Thorpe about Smith’s girlfriend.  Smith left the party with his girlfriend, stating that he would be back.

Thorpe and Hatcher spent the night at the Goodlows’ home sleeping on couches in the living room.  Thorpe was awakened by a knock on the front door.  He opened the door and recognized the man at the door as Smith.  Thorpe testified that Smith entered the house and went into the basement.  When Smith came back upstairs, he tried to enter Jermaine and Vernitta Goodlow’s bedroom, but the door was locked.  According to Thorpe, Smith entered the living room holding a gun, walked over to the couch where Hatcher was lying, said something to him, then shot him.  Thorpe testified that Smith then came over to him and said, “I can give you a dome shot.”  (A dome shot means a killing shot to the head.)  Smith shot as Thorpe moved to the side, and the shot missed.  Thorpe tried to run toward the gun, and Smith shot a second time.[1]  The bullet hit Thorpe in the left thigh, traveled up to his colon, and became lodged near his spine.

Hatcher testified that he was awakened by a knock on the door but was too tired to get up and open it.  Hatcher saw Thorpe open the door and then saw Smith walk right to Jermaine Goodlow’s bedroom.  According to Hatcher, Smith tried to enter the bedroom, but it was jammed with a knife, so it would not open.  Hatcher testified that Smith then went into the bathroom, and Hatcher went back to sleep.  Hatcher testified that the next thing he heard was Smith waking Thorpe, and he saw Smith standing over Thorpe with a chrome or silver gun in his hand.  Hatcher was scared that Smith was going to shoot him too, so he closed his eyes.  Hatcher testified that he opened his eyes when he heard a gunshot.  Hatcher saw Smith point the gun at him and shoot twice, go back to Thorpe and shoot again, and then leave the house.  Hatcher also heard Smith tell Thorpe, who was yelling because he was in pain, to shut up before he shot him in the head.  Hatcher was hit by one bullet, which grazed his chest causing a flesh wound that required stitches.  Hatcher called 911.  Minneapolis police responding to the 911 call arrested Smith after a brief chase.

            Smith was charged with one count each of attempted first-degree murder in violation of Minn. Stat. §§ 609.185(1), 609.17 (1998); first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (1998); and second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1998).  An amended complaint was later filed.  Only the probable-cause portion of the complaint was amended.  The case was tried to a jury.  The district court submitted the charged offenses, along with lesser-included offenses, to the jury.  The jury found Smith guilty of one count of first-degree assault and one count of second-degree assault. On the first-degree assault conviction, the court sentenced Smith to an executed term of 122 months in prison, the presumptive term.  The court imposed a consecutive, executed term of 60 months on the second-degree assault conviction.



The district court has broad discretion in sentencing, and this court will not reverse a sentence absent a clear abuse of discretion.  State v. Lundberg, 575 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. May 20, 1998).  Consecutive sentences are permissive when there are multiple current felony convictions for crimes against persons.  Minn. Sent. Guidelines II.F.2.  When multiple victims are involved, consecutive sentencing for crimes arising out of a single behavioral incident is permissive as long as the multiple sentences “do not unfairly exaggerate the criminality of the defendant’s conduct.”  State v. Sanford, 450 N.W.2d 580, 587 (Minn. App. 1990) (citation omitted), review granted (Feb. 28, 1990), and order granting review vacated (March 22, 1990); see also State v. Schmidt, 612 N.W.2d 871, 878 (Minn. 2000) (noting that when offenses with multiple victims arise from the same behavioral incident, appellate court will uphold the imposition of one sentence per victim if it would not result in punishment grossly disproportionate to defendant’s culpability).  In determining whether a sentence unfairly exaggerates the criminality of the defendant’s conduct, this court will compare the defendant’s sentence with those of other offenders.  Santiago v. State, 617 N.W.2d 632, 639 (Minn. App. 2000), review granted (Dec. 20, 2000). 

 On the first-degree assault conviction, the court sentenced Smith to the presumptive 122-months prison term.  The court imposed a consecutive, executed term of 60 months on the second-degree assault conviction.  Sixty months is the mandatory minimum sentence under Minn. Stat. § 609.11, subd. 5(a) (1998), which states:

[A]ny defendant convicted of an offense listed in subdivision 9 in which the defendant * * *, at the time of the offense, had in possession or used * * * a firearm, shall be committed to the commissioner of corrections for not less than three years, nor more than the maximum sentence provided by law.  Any defendant convicted of a second or subsequent offense in which the defendant or an accomplice, at the time of the offense, had in possession or used a firearm shall be committed to the commissioner of corrections for not less than five years, nor more than the maximum sentence provided by law.


Second-degree assault is one of the offenses listed in Minn. Stat. § 609.11, subd. 9 (1998).  The mandatory minimum is the presumptive sentence length under Minn. Sent. Guidelines II.F, which states:

            For each offense sentenced consecutive to another offense(s), other than those that are presumptive, a zero criminal history score, or the mandatory minimum for the offense, whichever is greater, shall be used in determining the presumptive duration.  The purpose of this procedure is to count an individual’s criminal history score only one time in the computation of consecutive sentence durations.


Smith argues that imposing the mandatory minimum sentence accounted for the seriousness of his conduct and that imposing both the mandatory minimum and a consecutive sentence for the second-degree assault unfairly exaggerated the criminality of his conduct.  Smith argues that the total length of his sentence is unfair given the manner in which he committed the offense and the nature of the injuries suffered by the victims.  The length of Smith’s sentence, however, also results from his criminal-history score, use of a firearm, and prior convictions for offenses committed with firearms, all of which are factors that increase the presumptive sentence length.

The district court did not abuse its discretion in imposing consecutive sentences against Smith.  Smith cites no case in which this court reversed the imposition of two consecutive sentences for crimes arising out of a single behavioral incident when the crimes were committed against multiple victims and both sentences were within the presumptive range.  The supreme court has noted that “in numerous cases involving aggravated robbery, assault, and multiple victims,” it has upheld the imposition of two or three consecutive sentences.  State v. Norris, 428 N.W.2d 61, 70-71 (Minn. 1988).



            Smith argues that the police violated his Fifth Amendment privilege against self-incrimination by subjecting him to custodial interrogation before giving him a Miranda warning.  But Smith’s counsel stated on the record that Smith had been given a Miranda warning.  Furthermore, Smith does not cite any statements admitted into evidence that were obtained in violation of his privilege against self-incrimination.

Prosecutorial misconduct

            Smith did not object at trial to the statements made by the prosecutor that he now claims were improper.

Generally, a defendant is deemed to have waived the right to raise an issue on appeal concerning the prosecutor’s comments during closing argument if the defendant fails to object or seek cautionary instructions.  However, a court may reverse a conviction despite the defendant’s failure to object or seek instructions if the prosecutor’s comments were unduly prejudicial.  The defendant’s failure to object implies that the comments were not prejudicial.


State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (citations omitted).     “Even if an error occurs at trial and that error, standing alone, is insufficient to require reversal, the cumulative effect of all errors may compel reversal.”  Santiago, 617 N.W.2d at 638-39 (citation omitted).

            Smith argues that the prosecutor committed misconduct by arguing that his defense lacked credibility.  The prosecutor pointed out that Smith’s testimony was contradicted by all of the other evidence presented at trial and that Smith was present during the entire trial and, thus, had the opportunity to tailor his version of events to the evidence.  The prosecutor also cited Smith’s prior convictions as evidence impeaching Smith’s credibility. The prior convictions had been admitted into evidence for impeachment purposes, and the prosecutor reminded the jury that the prior convictions were not evidence of Smith’s guilt in this case but rather could only be considered in evaluating Smith’s credibility.

“As every prosecutor should know, it is improper to express a personal opinion about the credibility of a witness.”  State v. Buggs, 581 N.W.2d 329, 343 (Minn. 1998).

The personal opinion rule is designed to prevent an attorney, whether a prosecutor or a defense attorney, from becoming an unsworn witness and otherwise personally attaching himself or herself to the cause which he or she represents.  As applied to the prosecutor, the rule helps avert exploitation of the influence of the prosecutor’s office.  The standard is not designed to prevent the prosecutor from arguing that particular witnesses were or were not credible.


State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991) (citation omitted).

            The prosecutor’s argument regarding Smith’s credibility was based entirely on evidence in the record.  There was not any improper expression of personal opinion.

            Smith contends that the prosecutor created a fantasy and urged the jury to speculate regarding events leading up to the shooting.  Smith also objects to the prosecutor’s argument that Smith should be convicted of committing attempted first-degree murder against Thorpe.  The prosecutor’s argument on those issues was based entirely on evidence in the record and reasonable inferences to be drawn from the evidence.  It is permissible for a prosecutor to argue all reasonable inferences from the evidence in the record.  State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).

Smith argues that the prosecutor referred to the Goodlow children’s terror in an effort to inflame the jury’s passion.  The prosecutor argued that the children, hearing gunshots in the next room, would have been frightened and listening intently to what was going on.  “The context of [a] comment is important in evaluating its propriety.”  State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993).  The remark about the children being frightened was made in the context of discussing the credibility of the children’s testimony and, read in context, would not have inflamed the jury’s passion.

            The prosecutor did not commit misconduct during closing argument.  Even if there was misconduct, it was not unduly prejudicial.

Second-degree assault

            Smith argues that the district court erred by submitting a second-degree assault charge to the jury because the offense was not charged in the amended complaint.  But the only second-degree assault charge submitted to the jury was that committed against Hatcher.  That offense was charged in the amended complaint.

Sufficiency of evidence

            Citing evidence that Thorpe was injured when the gun discharged during a struggle between Thorpe and Smith, Smith argues that the evidence was insufficient to support his first-degree assault conviction.  “Whoever assaults another and inflicts great bodily harm” commits first-degree assault.  Minn. Stat. § 609.221, subd. 1 (1998).  The definition of assault includes the “intentional infliction of or attempt to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10(2) (1998).  When reviewing a claim of insufficiency of the evidence, this court views the evidence in the light most favorable to the jury’s verdict and assumes that the jury believed the state’s witnesses and disbelieved contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  Thorpe testified that Smith shot him as he tried to run toward the gun.  The evidence presented by the state is sufficient to support the first-degree assault conviction.

Ineffective assistance of counsel

            Smith argues that his counsel was ineffective in failing to investigate and present mitigating evidence during trial and sentencing, including evidence of abuse and neglect during his early childhood, a chemical-dependency problem, witnessing his mother’s murder, and the structured environment in which he lived.  Such evidence was not relevant to Smith’s guilt or to his credibility.  Nor would it have been an appropriate mitigating factor in sentencing.  See Minn. Sent. Guidelines II.D.1.d (social factors not mitigating factors), II.D.2.a (listing mitigating factors; specifically excluding voluntary consumption of intoxicants).  Counsel, therefore, was not ineffective in failing to investigate and present the evidence.


[1] In a previous statement to police, Thorpe identified Hatcher as the person who shot him.  He also said that he was struggling with the gunman when he got shot in the leg.