This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Miar Gainer,




Filed December 11, 2001

Affirmed as modified
Klaphake, Judge


Hennepin County District Court

File No. 00053081



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, 300 S. Sixth Street, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Miar Gainer, convicted of three counts of aggravated first-degree robbery, Minn. Stat. § 609.245, subd. 1 (2000), argues that the district court erred in admitting crime reconstruction testimony by an unqualified expert witness and by admitting the victim’s medical records without proper foundation.  Appellant also asserts that the district court abused its discretion in sentencing him to a double upward departure on one of the aggravated robbery counts.

            Although the district court did err in permitting expert testimony by an unqualified witness and by admitting medical records without a proper foundation, we affirm appellant’s convictions because these errors were harmless beyond a reasonable doubt.  Because there is not a sufficient basis for an upward sentencing departure, we conclude that the district court abused its discretion and order appellant to serve the guideline presumptive sentence of 36 months for the conviction based on victim N.Z., in addition to the other two sentences.


I.  Evidentiary Rulings

            Appellate courts will generally defer to the district court’s evidentiary rulings, absent an abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  While courts are cautious about admitting testimony of an expert because of the potential for abuse, the decision to permit such testimony is within the discretion of the district court and will not be reversed absent clear error.  State v. Nystrom, 596 N.W.2d 256, 260 (Minn. 1999).

            An expert is one who is qualified by “knowledge, skill, experience, training or education” to testify about and give an opinion regarding scientific, technical or specialized knowledge.  Minn. R. Evid. 702.  The expert’s qualifications need not stem solely from formal training, but they must be based on some “knowledge, skill, or experience that would provide the background necessary for a meaningful opinion on the subject.”  Minn. R. Evid. 702 cmt.

            The state’s expert, William James, lacked any formal academic training in bullet trajectories, the subject on which the state offered him as an expert, and had no training in this area from any major law enforcement academy.  James’s only qualification was a high school course in trigonometry and years of experience in the impound lot.  This is insufficient to establish James as an expert, a designation that has the potential to unduly influence a jury by lending increased credibility to the witness’s testimony.  See State v. Grecinger, 569 N.W.2d 189, 193 (Minn. 1997). 

            The erroneous admission of evidence is harmless, however, if the conviction is surely unattributable to the error.  State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997).  James’s testimony was offered in support of the charges of attempted second-degree murder, the charges of which the jury acquitted appellant.  The jury’s verdict of guilty on the other counts is surely unattributable to the error.

            Appellant also argues that the district court committed reversible error in admitting N.Z.’s emergency room records without foundational testimony.  Medical records are admissible under the business records exception to the hearsay rule.  Minn. R. Evid. 803(6).  To qualify for the exception, a records custodian must testify that the records are kept in the ordinary course of business and that it is a regular practice of the business to make such a data compilation.  In the Matter of Martin, 458 N.W.2d 700, 703 (Minn. App. 1990).  The testimony of one who can authenticate or identify the evidence is a necessary foundational requirement.  Id.; see Minn. R. Evid. 901(a).

            The emergency room records were admitted over defense objection without the testimony of a records custodian, although N.Z. did identify them.  In accordance with Martin, this is error and an abuse of discretion.  Id. at 703-04. 

            The medical record contains nothing, however, in addition to N.Z.’s testimony, except the statement that appellant pointed the gun “at her.”  Once again, this is testimony that would support the charge of attempted second-degree murder, which was rejected by the jury.  Thus, although the court erred in admitting this evidence, this was harmless error that did not contribute to appellant’s conviction on the other counts.  Juarez, 572 N.W.2d at 292. 

II.  Sentencing Departure

            The district court imposed a sentence representing a double durational upward departure from the sentencing guidelines for the aggravated robbery charge involving N.Z., citing the particular cruelty with which appellant had committed the crime.

            The sentencing guidelines are presumed to be appropriate unless there are mitigating or aggravating factors and the district court’s decision to depart from the sentencing guidelines will not be overturned absent an abuse of discretion.  State v. Reece, 625 N.W.2d 822, 824 (Minn. 2001).  “The purposes of the sentencing guidelines will not be served if the trial courts generally fail to apply the presumptive sentences found in the guidelines.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).   Absent aggravating or mitigating factors, the district court has no discretion to depart.  Id.

            Generally, the offender’s conduct must be significantly more serious than that typical of the offense.  State v. Woelfel, 621 N.W.2d 767, 774 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001).  Conduct that constitutes an element of the offense is not a sufficient reason for departure.  State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991). 

            The district court cited the cruelty with which this crime was committed with regard to N.Z.  Specifically, the court found three bases: (1) N.Z. was an innocent bystander caught by surprise; (2) appellant actually fired the gun; and (3) N.Z. suffered a permanent, if minor, hearing loss.  The state argues as well that N.Z. was trapped in her car by appellant’s action and could not escape. 

            Possession of a weapon is an element of the crime of first-degree aggravated robbery.  Minn. Stat. § 609.245, subd. 1 (2000).  Appellant’s sentence included a mandatory minimum because of the use of a firearm in committing the crime.  Minn. Stat. § 609.11, subd. 5 (2000).   Therefore, neither factor should be considered in departing from the sentencing guidelines, because both are already included as an element of the crime or as an enhancement of the sentence.  See Coley, 468 N.W.2d at 556. 

            While it is unfortunate that N.Z. was an innocent bystander momentarily trapped in her car under frightening circumstances and that she suffered a minor hearing loss, neither of these factors is sufficiently compelling to permit departure from the recommended guidelines sentence.  Departure is justified only where conduct is “significantly more or less serious than that typically involved in the commission of the crime.”  Id. at 555 (quotation omitted).  We conclude that the record does not establish a basis for a finding that appellant’s conduct was more egregious than the typical aggravated robbery.  Accordingly, we modify appellant’s sentence on that count by reducing it to the presumptive term of 36 months.

            Affirmed as modified.