This opinion will be unpublished and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,
David Kenneth Christian,
Mower County District Court
File No. K4001117
Mike Hatch, Attorney General, Thomas Rolf Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 and:
Patrick A. Oman, Mower County Attorney, Courthouse, 201 First Street Northeast, Austin, MN 55912 (for respondent)
Barry V. Voss, 527 Marquette Avenue South, Suite 2355, Minneapolis, MN 55402 (for appellant)
Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from second-degree felony murder and first-degree assault convictions, appellant David Christian argues that (1) the evidence was insufficient, (2) the district court erred in refusing to give his requested instruction on accomplice liability, and (3) the district court abused its discretion when it determined that his prior convictions were admissible for impeachment purposes. Christian also challenges his sentence, arguing that consecutive sentences unfairly exaggerate the criminality of his conduct. We affirm.
On June 30, 2000, two men were killed and a third man was wounded during a robbery in Austin, Minnesota. The 14-year-old nephew of one of the victims phoned 911 to report that his uncle and two others had just been shot during a robbery in their room at the Downtown Motel.
Within 24 hours, appellant, his brother (Scot Christian), Vernon Powers, and Janea Wienand were arrested. Appellant was charged by complaint with two counts of aiding and abetting second-degree murder. A month later, appellant, Scot Christian, and Vernon Powers were indicted on two counts of first-degree premeditated murder, two counts of first-degree intentional felony murder, two counts of second-degree intentional murder, two counts of second-degree unintentional murder, and one count of first-degree assault, and the Mower County Attorney dismissed the earlier criminal complaint against appellant.
The three men were tried jointly. Before trial, the two first-degree premeditated murder counts against appellant were dismissed. At trial, Wienand testified that several days before the shootings, she, Tanisha Patterson, and Janet Hall went with the three men to Austin, where she and Hall looked for work as dancers at strip clubs. They spent two nights in Austin before returning to St. Paul. Late in the evening on the day they returned to St. Paul, Wienand, Patterson, and Hall went to Rochester with Powers and Scot Christian to find some strip clubs. They arrived in Rochester at about 2:00 a.m., and when they were unable to find any clubs in Rochester later that day, they drove back to Austin, where Scot Christian and Powers got the women a room at the Downtown Motel.
Instead of working as dancers, the three women spent the next several days working as prostitutes. Wienand testified that Powers and Scot Christian told the women to report if they saw a customer with a large amount of money, because the men could then rob the customer.
On Thursday, June 29, Powers and Scot Christian returned to St. Paul and left the women to work in Austin. That night, several men who were working in Austin and staying at the Downtown Motel came to the women’s room. Wienand saw one of the men take a $100 bill from a red bandana that appeared to have a lot of money in it. After the men left, Wienand told the other women that they should tell Scot Christian and Powers about the money, so that they could rob the man.
Later that night, Scot Christian, Powers, appellant, and appellant’s girlfriend Natasha Munos arrived at the motel. All, except Munos, met outside the motel room and talked about the money Wienand had seen earlier that evening. They decided to rob the man and talked about how they would do it. They decided that Wienand would knock on the door of the man’s room, and then Powers and Scot Christian would go into the room.
Soon after, the group prepared to leave Austin. Wienand testified that before appellant went to get the truck, he said, “[Y]’all got the guns; right?” Before the women left the room, Wienand saw some handcuffs, two guns, two nylon stockings, and two masks on the bed. She testified that all three men were aware of these items. The three men and Wienand talked in the motel room about the plan while the other women waited in the truck.
Appellant drove everyone to the victims’ room, backed into a parking space, and left the truck running. Wienand, Scot Christian, and Powers got out of the truck. Christian and Powers wore nylon stockings and masks over their heads, and each carried a gun. Wienand knocked on the door and was told to come in. After Wienand had identified the man she had seen with the cash, Juan Ramirez, she ran back to the truck, and Christian and Powers went inside the room.
Jorge Ramirez, the 14-year-old nephew of Juan Ramirez, woke up when someone kicked him in the forehead. At trial, he identified Scot Christian and Powers and testified that they both held guns that night. Scot Christian entered the room and went to a nightstand and asked for money. He had a nylon stocking on his head. Powers stayed by the door. Scot Christian told Powers to shoot Juan Ramirez, who was screaming for help. Jorge heard about four shots. He saw his uncle shot first. Then there was shooting toward the bed where Raul Gutierrez and Benjamin Hernandez were. Jorge Ramirez heard a total of eight or nine shots. After Scot Christian and Powers left, Jorge called 911.
Scot Christian and Powers returned to the truck, and appellant drove away. Powers said that he had lost a shoe and his mask when one of the men grabbed him, and then he shot the man. On the way out of Austin, appellant drove the truck over a bridge where Scot Christian and Powers threw Scot Christian’s jacket, a wallet they had taken from one of the victims, and some handcuffs out the window. The jacket and wallet were found near the bridge.
The group arrived in St. Paul at about 6:00 or 7:00 in the morning. They broke up and did various things during the day, but planned to meet later and leave town. Powers became concerned that the guns were still in their possession. Appellant wrapped the guns in a towel and put them in a truck that Wienand drove two blocks away, parked, and left. Wienand’s mother later cleaned out the truck and found the guns in the towel.
The police arrested appellant and Powers outside Weinand’s apartment. After talking to the police early the next morning, Wienand called her mother and told her to give the guns to the police.
Appellant and Scot Christian did not testify at the trial. Wienand and Jorge Ramirez were the state’s main witnesses. Powers, Patterson, Hall, and Munos also testified. The state introduced a tennis shoe; the jacket and wallet found near the bridge; a mask found in the truck; another mask found under Juan Ramirez; nearly $9,000 in cash found in Juan Ramirez’s pocket; shell casings; two guns; test results that showed gunshot residue on Scot Christian’s right hand; and results from DNA testing of the tennis shoe and mask found in the motel room, which showed a predominate profile that matched the profile of the sample obtained from Powers.
Appellant was found guilty of two counts of second-degree unintentional felony murder and one count of first-degree assault and was sentenced to consecutive terms of 246, 156, and 91 months, or a total of 493 months. His co-defendants were found guilty on all counts and sentenced to consecutive life terms.
D E C I S I O N
1. Sufficiency of the Evidence
In considering a claim of insufficient evidence, this court’s 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 and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant argues that the evidence of second-degree unintentional felony murder was insufficient because it was not “reasonably foreseeable that two murders would occur as a probable consequence of the intended crime; namely, robbery.” Appellant contends that (a) the verdict is based primarily on Wienand’s testimony, which was inadequate and uncorroborated; (b) Wienand’s testimony was inherently incredible; (c) he did not conceive of the crime, and commission of the crime did not depend on his presence; and (d) it was not reasonably foreseeable that anyone would be shot.
a. Corroboration of Wienand’s Testimony
A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Minn. Stat. § 634.04 (2000).
“Corroborating evidence must link or connect the defendant to the crime. It is not necessary that it establish a prima facie case of the defendant’s guilt. * * * Corroborating evidence may be circumstantial or direct.
* * * Corroborating evidence may be secured from the defendant’s association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed. The defendant’s entire conduct may be looked to for corroborating circumstances. If his connection to the crime may be fairly inferred from those circumstances, the corroboration is sufficient.”
State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (omissions in original) (quoting State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988)) (citations omitted).
Witnesses and physical evidence corroborate Wienand’s testimony. Munos testified that she and appellant went to Austin to collect money from prostitutes and that appellant was involved in a conversation with Scot Christian, Powers, and Wienand before the robbery and backed the truck into a parking space at the motel. Hall testified that appellant was in the room during the discussion of the robbery, and Patterson testified that appellant was involved in planning the robbery and drove the truck to room 28 and backed into a parking space.
Patterson also testified that she saw two guns in the truck, and she remembered Scot Christian and Powers throwing a coat, a wallet, and some handcuffs out the window of the truck after they left the scene. Munos also saw a coat being thrown from the truck. The police found a coat and wallet. The police also found a mask in the truck and another mask under Juan Ramirez and nearly $9,000 in cash in Ramirez’s pocket. These items corroborate Wienand’s testimony that there were two masks in the motel room and that Ramirez appeared to have a lot of money earlier in the evening.
Also, Wienand’s mother corroborated Wienand’s testimony that, after the incident, appellant wrapped the two guns in a towel and placed them in the second truck. Wienand’s mother retrieved the guns from the truck and gave them to the police.
All of this corroborating evidence linked appellant to the robbery and the shootings and suggested that appellant participated in the crimes.
b. Wienand’s Credibility
Appellant argues that Wienand cannot be believed because she admitted lying to the police and then striking a deal with them. The record reflects that Wienand initially stuck with the story that the group had gone to Austin to dance and nothing else had happened, but she later admitted that she had been lying and that she was scared after Powers threatened her.
Witness credibility is in the sole province of the jury. State v. Folkers, 581 N.W.2d 321, 326-27 (Minn. 1998) (rejecting as a matter of law defendant’s argument that certain testimony was unworthy of credit by jury); State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (stating that in all cases jury determines credibility and weight given to testimony). The fact that Wienand changed her story after initially telling the police a different story does not mean that the jury could not believe Wienand.
c. Passive Involvement
Appellant argues that he did not conceive the robbery and that the robbery did not depend on his presence or driving.
“[P]resence, companionship, and conduct before and after the offense are circumstances from which a person’s participation in the criminal intent may be inferred.” State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981). Further, “[w]here the accused plays at least some knowing role in the commission of the crime and takes no steps to thwart its completion, the jury may properly infer the requisite mens rea for a conviction of aiding and abetting.” State v. Strimling, 265 N.W.2d 423, 429 (Minn. 1978).
The fact that appellant was the getaway driver does not mean that his role in the robbery was passive. See, e.g., State v. Souvanarath, 545 N.W.2d 30, 34 (Minn. 1996) (defendant who fetched gun, drove car, and disposed of weapon was more than passively acquiescent); State v. Dukes, 544 N.W.2d 13, 20 (Minn. 1996) (not passive activity when defendant drove armed accomplices and accomplice testimony indicated that he cleaned and stored weapons used in incident). Contrary to appellant’s argument, the evidence reveals that he played an active role in the discussion, planning, and cover-up of the robbery.
d. Murder and Assault Reasonably Foreseeable
Appellant argues that “it was not reasonably foreseeable as a probable consequence of Scot Christian and [Powers] attempting to collect on a debt owed to [Weinand] that anyone would be shot.”
A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
Minn. Stat. § 609.05, subd. 1 (2000). Accomplice liability extends to “any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing” the intended crime. Id, subd. 2 (2000). Accomplice liability involves the jury’s determination of the facts. State v. Redding, 422 N.W.2d 260, 262 (Minn. 1988).
There was testimony that appellant was present when the robbery plan was discussed and that there were guns in the motel room. It was reasonably foreseeable that someone would be shot during a robbery committed with guns present.
2. Jury Instruction
Appellant argues that the district court should have allowed his proposed jury instruction stating that inaction or passive acquiescence does not rise to the level of criminal participation for accomplice liability. The court gave the recommended instruction on accomplice liability. 10 Minnesota Practice, CRIMJIG 4.01 (1999).
This court reviews a district court’s refusal to give “a requested instruction for abuse of discretion, focusing on whether the refusal resulted in error.” State v. Torres, 632 N.W.2d 609, 616 (Minn. 2001). “[A] party is entitled to an instruction on his theory of the case if there is evidence to support it.” State v. Ruud, 259 N.W.2d, 567, 578 (Minn. 1977).
If, however, the substance of a particular instruction is already contained in the court’s instructions to the jury, the court is not required to give the requested instruction.
State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995).
The accomplice instruction given by the district court included the statutory language “aided, advised, hired, counseled, or conspired.” This language “requires something more of a person than mere inaction to impose liability as a principal.” Ulvinen, 313 N.W.2d at 428. Consequently, the additional language requested by appellant regarding inaction was unnecessary; the court’s instruction contained the substance of the requested instruction. The trial court did not abuse its discretion by refusing to give appellant’s requested instruction on accomplice liability.
Furthermore, defense counsel argued in his closing argument that appellant’s mere presence did not make him an aider and abettor.
3. Prior Convictions Evidence
Appellant argues that the district court erred when it ruled that certain prior felony convictions would be admissible for impeachment purposes. This issue arose after Powers testified and appellant was considering whether to testify. After the court ruled that evidence of some prior convictions would be admitted as impeachment evidence, appellant decided that he would not testify.
A reviewing court will not reverse the district court’s admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown. State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988). Prior convictions are admissible for impeachment if the conviction was for (1) a felony and the probative value outweighs the prejudicial effect or (2) a crime involving dishonesty or false statement. Minn. R. Evid. 609(a). Generally, when the witness is the defendant, the conviction must not be older than ten years at the time of the charged offense. Minn. R. Evid. 609(b); State v. Ihnot, 575 N.W.2d 581, 585 (Minn. 1998). When the prior conviction does not directly involve truthfulness or dishonesty, the district court makes the discretionary judgment whether admission of the prior conviction is more helpful to the jury than it is prejudicial to the defendant. Ihnot, 575 N.W.2d at 586. Five factors help the court determine admissibility under the rule: (1) impeachment value of prior crime, (2) date of conviction and defendant’s subsequent history, (3) similarity of past crime with charged crime, (4) importance of defendant’s testimony, and (5) centrality of credibility issue. State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).
The district court ruled that it would admit evidence of a 1993 conviction of dangerous discharge of a firearm, 1994 convictions of a third-degree controlled substance offense and dangerous discharge of a firearm, and a 1999 conviction of felon in possession of a handgun. The court concluded that credibility was central to appellant’s case and that the probative value of the convictions outweighed their prejudicial effect.
Because appellant did not make an offer of proof, we do not know what his testimony would have been. But it is apparent that credibility was central to appellant’s case, and if he testified, his credibility would be judged against Wienand’s credibility. In such a case,
the general view is that if the defendant’s credibility is the central issue in the case that is, if the issue for the jury narrows to a choice between defendant’s credibility and that of one other person then a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.
State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).
In light of the heightened importance of appellant’s testimony and the centrality of the credibility issue, we conclude that the district court did not abuse its broad discretion by ruling that it would admit appellant’s prior felony convictions as impeachment evidence.
4. Consecutive Sentencing
Generally, “if a person’s conduct constitutes more than one offense * * * the person may be punished for only one of the offenses.” Minn. Stat. § 609.035, subd. 1 (2000). Consecutive sentencing of multiple felonies with multiple victims, however, is permissive and within the broad discretion of the district court. Minn. Sent. Guidelines II.F.2; State v. Whittaker, 568 N.W.2d 440, 453 (Minn. 1997). The court’s discretion is limited in that the multiple sentences cannot “unfairly exaggerate the criminality of the defendant’s conduct.” State v. Marquardt, 294 N.W.2d 849, 851 (Minn. 1980). This court does not generally interfere with sentences within the presumptive range. Whittaker, 568 N.W.2d at 453.
Appellant argues that consecutive sentences unfairly exaggerate the criminality of his conduct. But his argument is based on his claim that he had only minimal involvement in the robbery and murders. As we have already discussed, the evidence demonstrates that appellant’s involvement in the robbery and murders was more than minimal. Appellant participated in planning the robbery with knowledge that guns would be used. Appellant drove Scot Christian and Powers to the victim’s motel room and away from the scene after the robbery and murders occurred. Although appellant did not carry a gun himself, his role as the driver was an integral part of the offenses. Appellant also attempted to hide the guns after the incident. Also, although it appears that the robbery could have been accomplished without shooting anyone, the shootings were reasonably foreseeable, and appellant is criminally liable for his co-defendants’ actions, which left two people dead and a third seriously injured.
The district court did not abuse its discretion or exaggerate the criminality of appellant’s conduct when it imposed consecutive sentences. See Dukes, 544 N.W.2d at 20 (court did not abuse its discretion in ordering consecutive terms of life and 180 months’ imprisonment where getaway driver claimed passive involvement in one murder and one attempted murder).
Appellant also contends that his sentence makes no sense when his conduct is compared to Wienand, who pleaded guilty to the same offenses of which appellant was convicted and received a total sentence of 370 months. But
[a] defendant is not entitled to a reduction in his sentence merely because a co-defendant or accomplice has been convicted of a lesser offense or received a lesser sentence.
State v. Starnes, 396 N.W.2d 676, 681 (Minn. App. 1986). Other than noting that Wienand received a lesser sentence for the same offenses that he was convicted of, appellant makes no argument why he is entitled to a reduction in his sentence because Wienand received a lesser sentence. Appellant states that Wienand has a previous assault conviction, but he does not claim that Wienand’s criminal history is comparable to, or worse than, his. The fact that Wienand received a lesser sentence is not, by itself, a sufficient basis to reduce appellant’s sentence.
5. Pro Se Arguments
a. Sufficiency of Indictment
Appellant argues that the indictment was insufficient because second-degree assault is the substantive offense upon which the second-degree felony murder charges were predicated, and although intent is an implied necessary element of second-degree assault, the indictment did not expressly set forth intent as an element of the offense intended to be punished. The state argues that this claim is untimely, was waived, and lacks merit.
“[T]he failure of the indictment * * * to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.” Minn. R. Crim. P. 10.03. Despite the opportunity to raise his insufficiency claim at the November 3, 2000, hearing to dismiss the indictment, or at any other time during the proceeding, appellant never raised this issue below. “A party cannot raise an issue for the first time on appeal.” State v. Brovold, 477 N.W.2d 775, 777 (Minn. App. 1991), review denied (Minn. Jan. 17, 1992). Therefore, we will not consider the sufficiency of the indictment.
b. Joinder of Co-Defendants for Trial
Appellant argues that the facts of this case do not support joinder of the defendants and that joinder resulted in substantial prejudice to him. On appeal, this court makes an independent inquiry into any substantial prejudice resulting from joinder. State v. DeVerney, 592 N.W.2d 837, 842 (Minn. 1999). This involves consideration of “the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interests of justice.” Minn. R. Crim. P. 17.03, subd. 2(1).
We conclude that joinder was proper. The defendants acted in concert with one another. Separate trials would have required multiple appearances by witnesses, including Jorge Ramirez, who was only 14 years old at the time of the incident. Appellant does not identify conflicting defenses or trial strategies among the defendants, and the record reflects a common defense strategy of impeaching Wienand’s credibility. Appellant also argues that joinder led to guilt by association. But the court instructed the jurors to consider each defendant separately, and the verdict demonstrates that the jury did not hold appellant responsible to the same degree as his co-defendants.
We do not find any substantial prejudice resulting from joinder.
c. Improper Comment to Juror
Near the end of the trial, Powers’s girlfriend reported that she heard a prosecutor say to a juror at a restaurant “something to the effect of, we are about to blow it up; or, it’s about to blow up.” One of the prosecutors told the court that he had lunch at the same restaurant as one of the jurors, and on his way out of the restaurant, he nodded to the juror and said “something to the effect, done soon, or something like that—should be done soon.” The court questioned the juror, who said that he had seen the prosecutors at lunch the previous day, and one of them had said to him, “It’s winding down.” The juror said that the comment occurred in a matter of seconds just in walking past and that he did not feel that it was an attempt to influence him in any way. The juror’s statement satisfied the court that there had been only an offhand remark unrelated to the substance of the proceedings, and the attorneys did not seek any relief. Appellant now argues that the court did not hold the state to its burden of establishing that the statement was harmless when the court did not hear from the defense witnesses
“[P]rivate communication with a juror is presumptively prejudicial.” State v. Erickson, 610 N.W.2d 335, 338 (Minn. 2000). “To rebut the presumption, the state must show ‘beyond a reasonable doubt that the asserted error did not contribute to the verdict obtained.’” Id. at 338-39 (quoting State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982)).
[T]he proper procedure for reviewing a jury verdict is to determine from juror testimony what outside influences were improperly brought to bear upon the jury and then estimate their probable effect on a hypothetical average jury.
Cox, 322 N.W.2d at 559 (citations omitted).
The relevant factors to be considered by this court, in an independent evaluation of the verdict, are the nature and source of the prejudicial matter, the number of jurors exposed to the influence, the weight of evidence properly before the jury, and the likelihood that curative measures were effective in reducing the prejudice.
The district court followed the proper procedure of determining from juror testimony what outside influences were brought to bear on the juror and then determined the probable effect on a hypothetical average juror. We conclude that the single, brief statement to one juror had no prejudicial effect on the verdict. The statement contained no information about the trial other than that it was nearing the end. There was substantial evidence properly before the jury, and it is not apparent that the statement had any effect on the juror’s evaluation of the evidence. Finally, defense counsel did not find the incident sufficiently troubling to request any curative measures.
d. Absence from Hearings
Appellant argues that he was not present when the court questioned the juror about the prosecutor’s comment or at a later hearing, during jury deliberations, when the court and attorneys addressed a question from the jury.
Even if a defendant is wrongfully denied the right to be present at every stage of trial, a new trial is warranted only if the error was not harmless. If the verdict was surely unattributable to the error, the error is harmless beyond a reasonable doubt. When considering whether the erroneous exclusion of a defendant from judge-jury communications constitutes harmless error, we consider the strength of the evidence and substance of the judge’s response.
State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001) (citations omitted).
The evidence against appellant was strong. Regarding the comment to the juror, the court properly concluded that the comment was non-substantive. Regarding the jury question, the court responded by referring the juror to the instructions given while appellant was present. The verdict was surely unattributable to the judge-jury communications.