This opinion will be unpublished and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
State of Minnesota,
Andre NMN Sims,
Filed November 13, 2001
Gordon W. Shumaker, Judge
Hennepin County District Court
File No. 00030788
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Andre Sims, 970 Pickett St., N., Bayport, MN 55003-1490 (appellant pro se)
Appellant alleges that his convictions of aggravated robbery and simple robbery must be reversed because of insufficiency of evidence, the district court’s erroneous refusal to instruct on a lesser‑included offense, numerous instances of prosecutorial misconduct that resulted in a denial of due process, and the ineffectiveness of his trial counsel. Because we find no reversible error, we affirm.
At about 3:30 in the morning of December 8, 1999, taxi driver Mohamed Gulled picked up appellant Andre Sims and agreed to take him to his home in Eden Prairie. When they arrived there, Sims asked Gulled to wait while he went inside to get money to pay the fare. Sims returned and said he had lost his house key and that they would have to go to a hospital where his wife worked so Sims could get some money.
Thereafter, they drove to various places and eventually arrived at a Kinko’s store. Sims went inside and told the manager he was there to pick up an order for Jacob. When the manager could not find such an order, Sims said, “Open up the drawer and give me all the f--king money.” While he was demanding the money, Sims kept one hand in his pocket and the pocket bulged out. Sims was a very large man and his appearance and demeanor frightened the manager. The manager gave Sims $149 from the cash drawer.
Sims ran back to the cab and told Gulled to drive quickly to the highway. As Gulled entered a freeway, Sims told him to drive faster. Gulled was concerned, and when he saw a state trooper he repeatedly tapped his brakes to get the trooper’s attention.
When the trooper turned her siren on, Gulled stopped the taxi in the middle of the roadway. As Gulled got out of the car, the trooper told him to get back in and to move the vehicle off the road. When Gulled returned to the cab, Sims jumped into the front seat to gain control of the vehicle. Gulled claimed that Sims punched him in the face and caused his cheek to be bruised and scratched and that the punch hurt.
Sims was able to take control of the taxi, and he drove off. The trooper followed and soon another trooper joined the chase. After the cab struck a barrier, it careened into the center median and stopped. Sims fled on foot.
Ultimately Sims was caught and was charged with aggravated robbery for the theft of the cab, simple robbery for the theft of money from Kinko’s, and fleeing a peace officer in a motor vehicle. After a trial, a jury found Sims guilty of all charges. This appeal followed.
D E C I S I O N
I. Sufficiency of the evidence
Sims first challenges his conviction of aggravated robbery. An essential element of that crime is proof that the assailant inflicted bodily harm on the victim while committing a robbery. Minn. Stat. § 609.245, subd. 1 (1998). “Bodily harm” includes “physical pain or injury * * *.” Minn. Stat. § 609.02, subd. 7 (1998).
Sims acknowledges that Gulled testified that Sims punched him in the face, that the blow hurt, and that Gulled’s cheekbone swelled from the punch. But he contends that the trooper who initially stopped the cab did not testify that Sims punched Gulled and that another trooper just assumed that Gulled’s cheek was swollen due to the punch because that is what Gulled told him. Because of these conflicts, Sims urges that the evidence does not prove beyond a reasonable doubt that he inflicted bodily harm on Gulled.
When this court considers a claim of insufficiency of the evidence, its review requires a painstaking analysis of the record to determine whether the evidence, viewed in a light most favorable to the conviction, is sufficient to allow the jury to reach the verdict it reached. 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 evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Evidence presented through a single witness may be sufficient to sustain a conviction. State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).
Gulled’s testimony as to the punch and its consequences was unequivocal. The jury obviously believed him. This evidence was sufficient to establish the element of bodily harm.
II. Lesser‑included‑offense instruction
Sims requested that the district court instruct the jury on theft from person as a lesser‑included offense of the crime of simple robbery charged as to the Kinko’s incident. The court refused, and Sims argues that the refusal constituted an abuse of the court’s discretion.
The district court has discretion to instruct on a lesser‑included offense, but it must do so if the evidence warrants such an instruction. Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986). A lesser‑included-offense instruction is warranted if two criteria are met. First, the offense must be an “included” offense under Minn. Stat. § 609.04, subd. 1 (1998). We need not analyze this issue here because prior caselaw has already established that theft from person is a lesser‑included offense of simple robbery. State v. Nunn, 351 N.W.2d 16, 19 (Minn. App. 1984). Second, there must be a rational basis on which the jury could acquit the defendant of the charged offense and convict him of the lesser offense. State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994).
A jury has a rational basis to convict of a lesser crime and acquit of a greater offense if “proof of the elements which differentiate the two crimes [is] sufficiently in dispute so that a jury may make this distinction.” Bellcourt, 390 N.W.2d at 273. Simple robbery requires proof that the defendant used or threatened the imminent use of force to overcome the victim’s resistance or to compel the victim to acquiesce to the taking. Minn. Stat. § 609.24 (1998). Theft from person does not require the use or threat of the use of force. Minn. Stat. § 609.52, subd. 2(1) (Supp. 1999).
Sims does not dispute any of the facts comprising the Kinko’s incident. Rather, he maintains those facts do not show that he used or threatened the imminent use of force to obtain money from the store manager.
Although a threat can take the form of an express verbal declaration to use force, “[t]he test of whether words or phrases are harmless or threatening is the context in which they are used.” State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975) (citation omitted). Thus, we must consider whether the communication in its context would have a reasonable tendency to create an apprehension in the victim that force would be used if the victim failed to comply with the assailant’s demands. Id.
Threats can be indirect and can be implied by the conduct of the assailant. In State v. Murphy, 545 N.W.2d 909 (Minn. 1996), the supreme court held that the acts of leaving parts of dead animals on the victim’s property were, in the context of that case, threats to commit physical violence within the terroristic-threats statute. Id. at 915-16. The court also held that less graphic acts, such as slashing car tires and throwing rocks through windows, could be construed as threats of future violence. Id.
The factual context of the Kinko’s incident reveals that the crime took place between 3:30 and 4:30 a.m. The manager was alone in the store. Sims, a large, muscular man, stood two feet from the manager. He kept one hand in his coat pocket, and the pocket bulged out. Sims loudly, repeatedly, and with the use of profanity, demanded that the manager open the cash drawer and give him money. The manager felt intimidated and frightened.
The only reasonable inference to be drawn from the fact that Sims kept his hand in his bulging coat pocket throughout the incident is that Sims intended to suggest to the manager that he had a weapon in his pocket. That inference, coupled with the other surrounding facts, provides a context that would lead a reasonable manager to believe that the assailant would use force if he did not acquiesce to the assailant’s demands.
To acquit Sims of simple robbery and to convict him of the lesser‑included offense of theft from person, the jury would have had to ignore the unrefuted facts comprising the context of the incident and would have had to speculate that Sims kept his hand in his bulging pocket for some innocent reason. Although the jury might have had the power to acquit Sims of robbery under these circumstances, we do not believe it would have had a rational basis for doing so.
The mere taking of money without the use of force or threats is the type of conduct contemplated by the theft‑from‑person statute. State v. Nash, 339 N.W.2d 554, 557 (Minn. 1993) (no threat involved where defendant merely grabbed cash from victim’s open purse). But a taking accompanied by threatening conduct falls within the purview of simple robbery. See Minn. Stat. § 609.24 (1998). Thus, where an assailant demanded money from a retail clerk by shouting and using profanity and by holding his hand under his shirt in such a way as to suggest he had a gun, the assailant’s conduct was sufficient to support a conviction of simple robbery. See State v. Taylor, 427 N.W.2d 1, 4 (Minn. App. 1988) (using profanity and victim’s belief that defendant had a gun supported charge of simple robbery), review denied (Minn. Sept. 28, 1988).
Sims also argues that the manager gave him the money because it was Kinko’s policy that employees should comply with demands of persons who attempt to rob the store. That policy would not, in any event, ameliorate Sims’s conduct or prevent the manager from believing that Sims would use force if the manager failed to give the money to him. Thus, the district court did not err in refusing to instruct the jury on the lesser‑included offense of theft.
III. Pro se issues
In his pro se brief, Sims argues that the prosecutor violated Sims’s due-process rights by failing to disclose exculpatory evidence, that the court allowed inadmissible evidence; and that his trial attorney’s errors denied him the effective representation of counsel.
On the issue of bodily harm, the state offered an enlargement of a digital photograph that ostensibly showed Gulled’s swollen cheek. An investigating trooper took five digital photographs of Gulled’s face. The state had one enlarged. Sims requested enlargements of the other four. The state responded by indicating that the disk containing the photographs could not be located, although “thumbnail” photos were received in evidence. The state concedes that it was required to produce the disk so that enlargements of the remaining photographs could be made. See Minn. R. Crim. P. 9.01, subd. 6 (stating prosecutor must disclose any information in his possession or control that tends to reduce guilt of the accused); Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1196-97 (1963).
As a sanction for the violation of Rule 9.01, the district excluded the enlarged photograph. This photograph corroborated Gulled’s claim of physical injury. We have no reason to believe that the additional photographs on the same disk would have shown anything different. But had they been available, the enlarged photograph, corroborating the injury, would have been allowed. Thus, the jury would still have sufficient evidence to sustain an aggravated robbery conviction. The nondisclosure of the disk did not prejudice Sims, and the district court properly exercised its discretion in excluding the enlarged photograph. See State v. Freeman, 531 N.W.2d 190, 197-98 (Minn. 1995) (stating unless the court abused its discretion in choosing a remedy for a Brady violation, its decision will not be overturned).
Sims further points out that, despite the court’s exclusion of the enlarged photograph, both Gulled and the investigating trooper improperly revealed the content of the photograph through their testimony.
It is true that as part of the prosecutor’s effort to lay the foundation for the admission of the enlarged photograph, he elicited from both Gulled and the trooper a description of specifically what the photo depicted. Gulled said that it showed a bruise and a swelling. The trooper said the photo showed a bruise or a swollen cheekbone. Minn. R. Evid. 1002 provides that “[t]o prove the content of a * * * photograph, the original * * * photograph is required * * * .” This codification of the so-called “best evidence rule” prohibits the disclosure of the content of a photograph by verbal description. The photograph itself is the best evidence of what it purports to show. Thus, it was improper for the prosecutor to elicit specific descriptions of the content of the photograph.
However, the error did not prejudice Sims because the verbal descriptions were mere repetitions of what Gulled and the trooper, both having firsthand knowledge, had already competently testified to.
In his earlier testimony, Gulled stated that he had a lot of bruising on his face from Sims’s punches. When the prosecutor asked the trooper whether he observed any injuries on Gulled, the trooper stated that Gulled’s cheek and right side of his face seemed swollen. Thus, the jury, in hearing a description of the content of the photograph, heard nothing more than what they had already heard.
Sims also argues that the state violated his due-process right by failing to disclose evidence that no identifiable fingerprints were found on cigarette papers allegedly dropped by Sims at Kinko’s; failing to disclose Gulled’s whereabouts and notes from an interview with Gulled; failing to disclose that a trooper took Gulled to the hospital for examination; and failing to disclose an instruction sheet used in connection with a photographic‑identification display.
We have carefully considered these allegations and find no merit in them. For the most part, we have found no violations of the disclosure requirements. But even assuming that the alleged violations occurred, Sims was not deprived of any exculpatory evidence because of these alleged nondisclosures.
Finally, Sims argues that he was deprived of effective assistance of trial counsel because his attorney took no “remedial action,” except as to the enlarged photograph, relating to the alleged prosecutorial improprieties. To establish a claim of ineffective assistance of counsel, the appellant has the burden of showing both the particular deficiency in the representation and that, but for that deficiency, the result of the trial would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).
We have scrutinized the record and we have found no instance in which the defense attorney’s trial conduct fell below the objective standard of reasonableness to which attorneys are held. Id. Furthermore, as we have discussed, even assuming the accuracy of Sims’s allegations regarding prosecutorial improprieties, the unrefuted evidence is sufficient to reasonably ensure that the outcome of the case would not have been different.