This opinion will be unpublished and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
Dwight Anthony Goodman, petitioner,
State of Minnesota,
Filed October 1, 2002
Hennepin County District Court
File No. 99099126
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
A jury found Dwight Goodman guilty of burglary, aggravated robbery, two counts of second-degree assault, and illegal possession of a firearm. Goodman did not directly appeal from conviction but petitioned for postconviction relief, challenging the sufficiency of the evidence, the admissibility of a prior conviction, and the propriety of his sentence. The district court did not misapply the law or abuse its discretion in denying the petition, and we affirm.
F A C T S
Dwight Goodman, accompanied by another man, knocked on the door of Heidi Cook’s house at about 6:00 p.m. as Cook was preparing dinner for her eight-year-old son and her teen-aged foster daughter. When Cook responded to the knock on her door, she recognized Goodman but did not know the man who accompanied him. Cook had met Goodman two weeks earlier at a barbecue at her home and had seen him daily in the intervening two weeks when he came to visit her brother, who lived with her.
Goodman asked Cook if he could retrieve a gym bag from her brother’s room and Cook told him to “go ahead.” As Goodman went upstairs, the unidentified man went into the living room where Cook’s son was watching television. Goodman came back downstairs with his bag and asked Cook if he could use her phone. When Cook went to the kitchen to get the cordless phone, her son saw Goodman hand a gun to the unidentified man. As Cook walked toward Goodman with the phone, the unidentified man raised the gun to her face and said, “This is a jack, b-tch.” Cook fell to the ground.
Either Goodman or the unidentified man ordered Cook to “give me your sh-t.” Cook looked for her purse in the headboard of her bed, but it was not there. Goodman began pulling everything off her closet shelves, saying, “Give me your sh-t, where is your sh-t at?” The unidentified man ordered Cook to lie down on the bedroom floor.
Cook’s foster daughter, who had been downstairs, came up to the living room and sat on the couch with Cook’s son. Cook testified that her son could see into her bedroom and that the unidentified man told Cook, “You better tell your son to keep his head down, I don’t want to hurt him.” When Cook lifted her head to tell her son to keep his head down, the unidentified man hit her on the back of the head and shoved the barrel of the gun into the back of her head. Goodman continued to rummage through Cook’s bedroom, pulling all of the drawers out of her dresser. Cook gave the unidentified man two rings that she was wearing. The unidentified man aimed the gun at Cook’s son and foster daughter who were sitting on the couch and told them to turn around. Cook told her foster daughter to sit on her foster-brother’s head so he would not be able to look into the bedroom.
Before leaving the house, Goodman warned Cook against reporting the crime: “Swear to God you better not say my name . . . you better not tell nobody . . . ain’t nobody gonna be here for you all the time.” Cook comforted her crying children and, after a few minutes, called the police.
Before trial, the district court ruled that Goodman’s prior 1996 conviction of attempted aggravated robbery was admissible for impeachment purposes. Goodman did not testify. The jury convicted Goodman of all five charged offenses. The district court sentenced Goodman to 72 months for first-degree burglary; 52 months consecutive for first-degree aggravated robbery; and 60 months on each of the remaining charges to be served concurrently with his burglary sentence. Goodman did not file a direct appeal but petitioned for postconviction relief. The district court denied the petition and Goodman appealed.
D E C I S I O N
We review a postconviction order to determine whether the evidence is sufficient to sustain the findings of the postconviction court. Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). Absent an abuse of discretion, a postconviction court’s decision will not be reversed on appeal. Id. Goodman challenges: (1) the sufficiency of the evidence on each of the convictions, (2) the admissibility of his prior conviction for impeachment purposes, and (3) his sentence.
In reviewing a challenge to the sufficiency of the evidence, we evaluate the record in the light most favorable to the conviction to determine whether the evidence reasonably could have permitted the jury to convict. State v. Henderson, 620 N.W.2d 688, 704-05 (Minn. 2001). It is the province of the jury to determine the witnesses’ credibility, and, on review, we assume that the jury believed the witnesses whose testimony supports the conviction and disbelieved the witnesses whose testimony did not. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990); see also State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999).
Goodman contends, first, that the evidence is insufficient to support his conviction of first-degree burglary on the element of nonconsensual entry. A conviction of first-degree burglary requires proof that the defendant “enters a building without consent” while intending to or later committing a crime while in the building. Minn. Stat. § 609.582, subd. 1 (2000). “Enters a building without consent” includes entering a building “by using artifice, trick, or misrepresentation to obtain consent to enter from the person in lawful possession.” Minn. Stat. § 609.581, subd. 4 (2000).
The evidence is sufficient for the jury to find that Goodman gained entry through misrepresentation. Goodman asked and received permission to enter the house, claiming that he needed to retrieve his gym bag. Although Goodman’s conduct showed some consistency with his declared purpose for entry, a jury could reasonably infer that the purpose for entry was misrepresented so that he and his friend could, instead, commit robbery. The facts, including the short time that elapsed between the entry and the robbery, amply support a jury finding that the intent to gain entry was to rob Cook, not to retrieve a gym bag full of clothes. See State v. Van Meveren, 290 N.W.2d 631, 633 (Minn. 1980) (upholding jury’s finding of nonconsensual entry when former neighbor gained entry by asking to use bathroom and committed assault); see also State v. Zenanko, 552 N.W.2d 541, 542 (Minn. 1996) (upholding jury’s finding of nonconsensual entry when defendant identified himself and inquired about occupant’s fiancée and, when the door was opened, stabbed occupant).
On the remaining charges, Goodman claims that the evidence was insufficient to establish that he used a dangerous weapon or illegally possessed a firearm because the gun was not recovered and the witnesses did not sufficiently describe the gun. The fact that a gun was not produced for trial does not change the character of the evidence. The weight accorded to the evidence and the credibility of the testimony is a jury question. State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000).
Aggravated robbery requires that the defendant be armed “with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon.” Minn. Stat. § 609.245, subd. 1 (2000). Both Cook and her son testified that a gun was used during the robbery. As the postconviction court pointed out, the testimony of Cook and her son was direct, not circumstantial, evidence that a gun was used during the robbery. The jury determined that their testimony was credible.
Second-degree assault is assault with a “dangerous weapon.” Minn. Stat. § 609.222, subd. 1 (2000). “Dangerous weapon” includes “any firearm, whether loaded or unloaded * * * .” Minn. Stat. § 609.02, subd. 6 (2000). The two assault charges were for pointing the gun at Cook’s son and foster daughter. Cook’s son testified that the unidentified man pointed a gun at him and his foster sister. The court properly instructed the jury on criminal liability for aiding and abetting. Cook testified that Goodman twice threatened to hurt her son. The evidence was sufficient to support the second-degree assault convictions.
The felon-in-possession statute forbids certain persons from possessing “a pistol or semiautomatic military-style assault weapon or * * * any other firearm.” Minn. Stat. § 624.713, subd. 1 (2000). The plain language of the statute does not require the state to show that the firearm was operable at the time of possession. Goodman relies on State v. Spaulding, 296 N.W.2d 870 (Minn. 1980), as authority for his argument that proof of operability is required. But Spaulding held only that it was unnecessary to make that determination because the facts presented at trial showed that the gun was operable and no testimony indicated that it was not. Id. at 875. The facts similarly establish that the gun in this case was used and perceived as if it were operable and no facts suggest otherwise. See LaMere v. State, 278 N.W.2d 552, 556-57 (Minn. 1979) (holding that manufactured firearm is a firearm even if mechanical defect makes it temporarily inoperable).
Goodman also claims that the testimony of Cook’s eight-year-old son was insufficient to support Goodman’s possession of the firearm. As the postconviction court pointed out, these arguments go to weight and credibility; the jury made its credibility determination, and we have no basis for reversal.
Goodman also claims that the district court erred in ruling that a 1996 prior conviction for attempted aggravated robbery was admissible for impeachment. The postconviction court rejected Goodman’s challenge to the admissibility of the conviction.
The decision to admit evidence of a prior conviction for impeachment is within the discretion of the district court. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993). A previous conviction can be used to impeach credibility if it was punishable by imprisonment of more than one year and the court determines that the probative value of admitting the evidence outweighs the prejudicial effect. Minn. R. Evid. 609(a). It is undisputed that the conviction, which occurred three years before the incident, was punishable by more than one year’s imprisonment.
In weighing probative value against an unfairly prejudicial effect, the court must consider five factors: the prior crime’s impeachment value; the date of the crime, together with the defendant’s subsequent history; the similarity between the past crime and the charged crime; the importance of the defendant’s testimony; and the centrality of the credibility issue. State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).
The district court thoroughly discussed the five Jones factors and carefully considered whether to allow the impeachment testimony. The court noted that the fifth Jones factor weighed heavily toward admission of the evidence, because the central issue was credibility, and the defense intended to attack Cook’s credibility with recantation testimony on a domestic-abuse case. The court also considered the third Jones factor, that the 1996 attempted-aggravated-robbery conviction was similar to the current charges. The court found that the similarity weighed against admission, but that the offense was dissimilar in that the defendant used no trick or artifice to gain entry in the previous crime. The court concluded that a cautionary instruction on the limited purpose for impeachment evidence would address the similarity problem. The district court carefully weighed the relevant Jones factors and did not abuse its discretion in its evidentiary ruling.
Goodman claims that the district court unfairly exaggerated the criminality of his behavior by imposing two separate sentences for the assaults.
A sentencing court may impose separate sentences when a defendant is convicted of multiple felonies involving more than one victim, so long as the imposition does not unfairly exaggerate the criminality of the behavior. State v. Sanders, 598 N.W.2d 650, 656-57 (Minn. 1999); State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995). When sentences are within the presumptive range, an appellate court is reluctant to reverse the district court’s exercise of sentencing discretion. State v. Norris, 428 N.W.2d 61, 70 (Minn. 1998).
The district court’s decision to impose separate, concurrent sentences for the assault of each child does not unfairly exaggerate the criminality of the behavior and was not an abuse of discretion. The children were on the couch, the gun was pointed at them, they were threatened several times, and they could see Goodman and the unidentified man physically threatening and robbing their mother.
Finally, Goodman claims that because the felon-in-possession conviction arose out of the same behavioral incident as the burglary, robbery, and assault charges, the district court erred in imposing a separate sentence for felon-in-possession. The postconviction court held that the possession of the gun before the robbery was a distinct crime. On appeal we evaluate whether the record sustains the sentencing court’s conclusion that the conduct underlying the convictions was a single behavioral incident. State v. Nordby, 448 N.W.2d 878, 880 (Minn. App. 1989).
Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of each case. Bookwalter, 541 N.W.2d at 294. Among the factors to be considered are “‘the singleness of purpose of the defendant and the unity of time and place of the behavior.’” Id. We have previously determined that it is not error to impose separate sentences for possession and use of a weapon. State v. Butcher, 563 N.W.2d 776, 784 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997) (court may impose separate sentences for transporting uncased firearm and for taking big game out of season). When charged offenses are separate and distinct, are committed and proven independently, do not demonstrate an indivisible state of mind, and do not necessarily give rise each to the other, they may be sentenced separately. Id.
The record established that Goodman had possession of the gun while in the house and handed the gun to the unidentified man who accompanied him. This offense was separate and distinct from the robbery and assaults which Goodman aided and abetted. The sentencing court did not err in imposing a concurrent sentence for the illegal possession of the firearm.