This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed June 3, 2003
Hennepin County District Court
File No. 01070967
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Amy Klobuchar, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55414 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.
On appeal from his conviction and sentence for kidnapping, appellant Jesus Flores-Acosta argues that the district court abused its discretion by: (1) relying on insufficient evidence to prove the elements required to sustain a conviction for kidnapping; and (2) by relying on improper factors to justify an upward departure at sentencing. We affirm.
In the early morning of August 26, 2001, two women (E.P. and L.H.) were driving into the parking lot of the apartment where E.P. lived. As the two women pulled into the parking lot, a car pulled in behind them. A man got out of the second car, approached the driver’s side window of the women’s car, and pointed a gun at them. The women were ordered to get out of the car and to not look at him or they would be killed. The women were told to get into his car and to keep their heads down. There were at least four unidentified men in the vehicle. The women were driven around for about thirty-minutes and taken to a park. At least one person followed in E.P.’s vehicle. The women were forced from the car at gunpoint and made to kneel on the ground. The men demanded money and credit cards from the women. E.P. told the men that she had neither; L.H. had no credit cards but gave the men her cash. The men then split the women up. Two men took L.H., at gunpoint, in their vehicle. L.H. was subsequently raped by each of these men. Three men took E.P., at gunpoint, in her car. Appellant was later identified as one of these three men. Because E.P. was forced to keep her head down, she was unable to identify where appellant sat. He was either the driver or a passenger in the backseat with her. A third, unidentified male sat in the passenger seat, holding a gun pointed at E.P. E.P. was taken to the Hidden Beach area of Minneapolis. At that location E.P. was removed from her car at gunpoint. The three men began walking her toward the beach. The man with the gun told E.P. that his friends just wanted to have sex with her. As they were walking toward the beach, the man with the gun wandered off and E.P. was able to get away. E.P. ran up to some people at the beach and asked for help. As these people escorted her to their vehicle, E.P. saw the two assailants in her car. She was taken to a local gas station where she could call the police. Some time later, the police brought E.P. back to the Hidden Beach location where she had last seen her car. The police arrested two men who were found in the vehicle. A sawed off shotgun not belonging to the victim was found underneath the right passenger seat. E.P. identified the two men at the scene as the men who had driven her from the park to Hidden Beach and that had tried to force her into the woods. The third man with the gun was never found. The two men were identified as appellant Jesus Flores-Acosta and his cousin, Aldo Acosta-Dominguez.
Alleging that Jesus Flores-Acosta committed numerous crimes against the two women, the state charged him with six counts: two counts of kidnapping, two counts of first degree aggravated robbery, one count attempted criminal sexual conduct, and one count theft of a motor vehicle. Trial was to commence on March 4, 2002. Appellant waived his right to a jury trial and agreed to submit the matter on stipulated facts to the district court judge. By agreement with the state, the sole count submitted to the court was an amended kidnapping charge, which included both victims. The parties agreed that if appellant were convicted, his sentence would be subject to a 60-month cap. After a bench trial, the district court found appellant guilty of the amended kidnapping charge. The court sentenced Flores-Acosta to 60 months in prison, a 24-month upward departure from the presumptive sentence of 36 months. This appeal follows.
Appellant argues that the district court abused its discretion by relying on insufficient evidence to prove the elements required to sustain a conviction for kidnapping. To prove kidnapping, the state must show that a defendant: (1) confined and/or removed a person; (2) against that person’s will; (3) to facilitate the commission of a felony or flight thereafter. Minn. Stat. § 609.25, subd.1(2) (2002). Because we agree with the district court that these elements were sufficiently proved, we affirm the conviction.
A. Aiding and abetting and kidnapping of L.H.
Appellant claims there is insufficient evidence to show that he kidnapped or aided and abetted in the kidnapping of L.H. Under Minn. Stat. § 609.05,
Subd. 1. 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.
Subd. 2. A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.
Minn. Stat. § 609.05, subds. (1) and (2) (2000). To prove aiding and abetting, the state need not prove that the defendant actively participated in the overt act that constitutes the primary offense, but must show more than passive acquiescence or inaction is required. State v. Dominguez-Ramirez, 563 N.W.2d 245, 257 (Minn. 1997). “A person’s presence, companionship, and conduct before and after an offense are relevant circumstances from which a person’s criminal intent may be inferred.” State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (citing State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993)); Matter of Welfare of M.D.S., 345 N.W.2d 723, 733 (Minn. 1984). And, intent can be logically inferred from the totality of the circumstances. See State v. Raymond, 440 N.W.2d 425, 426 (Minn. 1989) (noting that intent is an inference drawn from the totality of the circumstances).
Appellant argues that there is no evidence that he was even present for, let alone a participant in, the kidnapping of L.H., so he cannot properly be convicted of aiding and abetting in this crime. We disagree. The conviction rests on circumstantial evidence. A circumstantial evidence conviction will be upheld “if the reasonable inferences drawn from the evidence are inconsistent with any rational hypothesis except that of the defendant’s guilt.” State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000) (citation omitted).
Circumstantial evidence is entitled to as much weight as any other kind of evidence and a conviction based on circumstantial evidence will be upheld so long as the evidence and the reasonable inferences drawn from that evidence are consistent with the defendant’s guilt and are inconsistent with any rational theory except that of guilt.
Dominguez-Ramirez, 563 N.W.2d at 257.
Based on the circumstantial evidence, it is clear that appellant was present during the initiation of the kidnapping, and present when the two women were separated at the park. E.P. stated that she was able to discern that there were a total of at least five men. E.P. told police that three men led her off to her car, and she identified one of the men as Flores-Acosta. She also saw two men leading L.H. away to the other vehicle. L.H. was taken away and raped by these two men. Appellant assisted in removing E.P. from that location and facilitated the movement of the men and the two women, which ultimately resulted in a sexual assault on L.H. If a person has some knowing role in the commission of a crime, and takes no steps to prevent it, the finder of fact may properly infer the necessary intent for aiding and abetting. Ostrem, 535 N.W.2d at 924. Appellant’s presence and assistance in separating the women, knowing that the two women were being held at gunpoint, are sufficient to support the conviction of aiding and abetting in the kidnapping of L.H.
Appellant next claims that there is insufficient evidence to show that he possessed an intent to commit felony criminal sexual conduct against E.P., and that because this is an element of kidnapping, the evidence is insufficient to support that conviction.
E.P. positively identified appellant as one of the men who was in the car with her as they left the park and went to Hidden Beach. Appellant was either the driver of the vehicle or sat in the back seat with her. The man with the gun sat in the front passenger seat. This evidence is sufficient to establish that appellant played some knowing, active role in the confining and taking away of E.P. against her will. Appellant argues that this evidence, however, does not establish that he or his companions intended to commit a felony sex crime against E.P.
E.P. told police that while in the car, the man in the seat next to her put his arm around her and kissed her back. E.P. stated that when they got to Hidden Beach, the men put their arms around her waist and led her down toward the beach, attempting to pull her toward the woods. In her statement to police, E.P said that as she was being led toward the beach, the man with gun “said that his friends just wanted to have sex with me.” This evidence supports the inference that appellant and his companions intended to commit a sex crime against E.P. Appellant argues that the acts of himself and his companions would not amount to felony criminal sexual conduct, and thus do not support the conviction for kidnapping. However, the statute does not require that the kidnappers complete the desired felony, it only requires that they confine or transport the victim to facilitate the commission of the desired felony. Minn. Stat. § 609.25, subd. 1(2) (2002). We conclude the elements of kidnapping were met and, thus, the conviction is affirmed.
Finally, appellant argues that the district court abused its discretion by relying on improper factors to justify imposing a 24-month upward departure from the presumptive sentence of 36 months.
The court may only depart upward if aggravating factors are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). When substantial aggravating factors are present, the decision to depart from the sentencing guidelines is within the district court’s authority and will not be reversed absent a clear abuse of discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).
Appellant was convicted of kidnapping under Minn. Stat. § 609.25, subd. 1(2). The presumptive sentence for appellant’s crime was 36 months in prison, due to the use of a firearm in the commission of the crime. Minn. Stat. § 609.11, subd. 8(a) (2002). The sentence appellant received was 60 months, an upward departure. The sentencing guidelines provide a non-exclusive list of aggravating factors. Minn. Sent. Guidelines II.D.2,b. For the facts to create an aggravating factor, the defendant’s conduct must be “significantly more * * * serious than that typically involved in the commission of the crime in question.” State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984). The district court needs only one valid basis to support an upward departure from sentencing guidelines. See State v. Jeno, 352 N.W.2d 82, 85 (Minn. App. 1984) (providing one reason for the upward departure).
Appellant aided and abetted the kidnapping of two victims, L.H. and E.P. The district court held that the existence of multiple victims justified the upward departure. The presence of multiple victims can be a legitimate aggravating factor. See State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996); State v. Morris, 609 N.W.2d 242, 246 (Minn. App. 2000), review denied (Minn. May 23, 2000). Further, another factor not cited by the district court supports the departure here. See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (stating that even if the cited reasons for departure are inadequate or improper, the departure should be affirmed if it is supported by sufficient evidence in the record). Here, appellant committed the crime as part of a group of three or more persons who all actively participated in the crime. Minn. Sent. Guidelines II.D.2.b.(10). Both the presence of multiple victims and the fact that appellant committed this crime as part of a group support the imposition of an upward departure, and the district court did not abuse its discretion.