This opinion will be unpublished and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,
Ron Milo Hubert,
Filed January 15, 2002
Benton County District Court
File No. K1-00-1099
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Robert J. Kaupp, Benton County Attorney, Court Facility, P.O. Box 189, Foley, MN 56329 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of aggravated robbery on the grounds of insufficient evidence and erroneous jury instructions and asserts that the district court abused its sentencing discretion by not properly considering all mitigating factors. Because we find that there was sufficient evidence to convict appellant of aggravated robbery and that the district court neither erred in its jury instructions nor abused its discretion in sentencing appellant to the presumptive prison term, we affirm.
On September 10, 2000, appellant Ron Hubert assaulted Mark Johnson in appellant’s apartment. During the assault, Brian Hanson, who lived upstairs from appellant, entered the apartment. Appellant directed Hanson to remove Johnson’s wallet from Johnson’s pocket. When police arrived, Johnson was found covered with blood lying on the ground outside the apartment.
Police found Johnson’s wallet in appellant’s possession and observed blood throughout appellant’s apartment. Appellant does not deny that he assaulted Johnson. He told police, “I did everything. * * * I punched him * * * [;] I’m the one that grabbed him and held him down.” Appellant admits that he directed Hanson to take Johnson’s wallet, stating, “[W]hen I held him down, pretty much he couldn’t move, I said Brian grab his wallet.” Appellant also told police that he assaulted Johnson because of an earlier incident for which appellant served jail time because Johnson was allegedly involved in a hit-and-run accident with appellant’s car.
After trial, a jury found appellant guilty of aggravated robbery. Appellant moved for a downward dispositional departure, seeking a probationary sentence. The district court sentenced appellant to the presumptive 44-month prison term. This appeal followed.
In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Here, the jury found appellant guilty of aggravated robbery, which is defined as:
Whoever, having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance * * * or to compel acquiescence in, the taking or carrying away of the property * * *.
Minn. Stat. § 609.24 (2000). If, while committing robbery, one “inflicts bodily harm upon another,” that person is guilty of first-degree aggravated robbery. Minn. Stat. § 609.245, subd. 1 (2000). The state must prove both that the use of force preceded or accompanied the taking and that force was “used to overcome the victim’s resistance or compel his acquiescence.” State v. Kvale, 302 N.W.2d 650, 653 (Minn. 1981).
Appellant admits that he inflicted bodily harm when he struck the victim. But appellant argues that he could not be convicted of robbery because “he used force to pay back Johnson for getting him into trouble” and that taking Johnson’s wallet was merely an “afterthought.”
The aggravated robbery statute does not require premeditation by the aggressor. That appellant viewed the assault as revenge for a past incident does not mean that appellant did not also intend to rob the victim. The supreme court has recognized that intent may be “inferred by the nature of the acts, what the defendant did * * *.” State v. Charlton, 338 N.W.2d 26, 30 (Minn. 1983). Here the evidence shows that appellant assaulted Johnson and held him down while directing another to take his wallet. Viewing this evidence in the light most favorable to the verdict, the jury reasonably could have inferred that appellant intended to use force to overcome Johnson’s resistance to the taking of his wallet.
We conclude that there is sufficient evidence to support appellant’s conviction for first-degree aggravated robbery.
2. Jury Instructions
District courts are allowed “considerable latitude” in selecting language for jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)). Jury instructions must be viewed in their entirety. State v. Gisege, 561 N.W.2d 152, 160 (Minn. 1997).
At trial, appellant did not object to the jury instructions. Where there is no objection to jury instructions in the trial court, appellate courts may review the instructions only if a party demonstrates (1) that there is an error; (2) that it is plain; and (3) that it affects substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Appellant argues that the district court violated established caselaw by instructing the jury on which charge to consider first. See State v. Dahlstrom, 276 Minn. 301, 311, 150 N.W.2d 53, 61 (1967) (court should not impose a view as to the order of procedure to be followed by the jury).
Our examination of the instructions in their entirety shows that the district court did not intend to influence the order of jury deliberations. Near the beginning of the instructions, the court stated:
I have not by these instructions nor by any ruling or expression during the trial intended to indicate my opinion regarding the facts or the outcome of the case.
After defining the elements of aggravated robbery and third degree assault, the court instructed:
[Y]ou will be free to consider the issues here in any order you wish, and I have not intended by anything I’ve said to indicate the order in which you must discuss or consider those issues.
Finally, in the instructions to which appellant objects, the district court was advising the jury how to handle the jury forms, not directing its deliberations. The jury was told:
I’m going to send four verdict forms into the jury room with you. * * * There will be a not guilty verdict form and a guilty verdict form for the offense that’s charged for Aggravated First Degree Robbery. * * * Now, you are to return only one verdict form, either guilty or not guilty, of the charge of Aggravated Robbery. If you find the defendant is guilty, you return the guilty verdict form for that charge. If you find the defendant is not guilty, return the not guilty verdict form for that charge.
Now if you find the defendant not guilty of the charge of Aggravated Robbery, then you should also return one of the forms for the lesser included offense of Assault in the Third Degree * * * . Now, you do not need to consider this lesser included charge if you find the defendant guilty of the crime of Aggravated Robbery.
We conclude that the district court did not err by directing the order in which the jury should proceed in considering the aggravated robbery and third-degree assault charges.
“We review a sentence imposed by a district court under an abuse of discretion standard.” State v. Myers, 627 N.W.2d 58, 61-62 (Minn. 2001) (citation omitted). While this standard gives the courts broad discretion, it is not a “limitless grant of power.” Id. (citation omitted). Only in a “rare” case will a reviewing court reverse a district court’s imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6,7 (Minn. 1981).
Here, the district court did not depart from the sentencing guidelines and sentenced appellant to a 44-month prison term. Appellant argues that the district court abused its discretion in denying his motion for a downward dispositional departure. He claims that several mitigating factors, including his mental illnesses, support a downward disposition. One psychological report found that appellant suffers from attention deficit hyperactivity disorder, learning disability, impulse control disorder, bipolar disorder, and antisocial personality disorder. Another licensed psychologist found that appellant has attention deficit disorder, learning disabilities, and an underlying personality disorder, but does not exhibit any distinct mania, psychosis, or bipolar symptoms. The district court considered these reports and determined that appellant had “some capacity to understand right from wrong.”
Appellant also argues he is amenable to probation. The relevant factors in determining whether appellant is amenable to probation include his age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of his family and friends. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). These factors are evaluated within the individual facts of each case, not applied mechanically. See id.
The pre-sentence investigation report (PSI) found that appellant had “not taken responsibility for his offense” and blamed the victim; a psychologist noted that he “seeks to blame others.” And, while appellant argues that his family environment would help him change his future behavior, the pre-sentence investigation noted that
[appellant] has been sheltered from the consequences of his actions his entire life. Spending time in prison will minimize his parents[’] ability to protect him from the consequences of this incident and his ongoing behavior.
As noted by the district court, appellant has been resistant to treatment in the past. Appellant’s lack of remorse, minimization of his actions, and resistance to past treatment do not show that appellant is amenable to probation. The PSI noted that appellant “represents a significant threat to community safety.” Likewise, a psychologist found that appellant “is at a high potential of becoming involved in [il]legal situations and continued interpersonal problems.” The risk to public safety is significant when determining whether to depart dispositionally from the sentencing guidelines. State v. Sejnoha, 512 N.W.2d 597, 601 (Minn. App. 1994), review denied (Minn. Apr. 22, 1994). Additionally, the nature of this crime was not less serious than a typical aggravated robbery, another issue to be considered. See State v. Carpenter, 459 N.W.2d 121, 127-28 (Minn. 1990). We conclude that the district court did not abuse its discretion when sentencing appellant to a 44-month prison term.
 We also note that, even if the instructions were erroneous, considering the strong evidence against appellant, they did not affect appellant’s substantial rights, nor is it reasonably likely that the instructions had a significant effect on the verdict. See Dahlstrom, 276 Minn. at 311, 150 N.W.2d at 60 (no prejudicial error when a judge actually suggested a procedure for the jury to follow in because of pervasive evidence that the defendant was guilty).