This opinion will be unpublished and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,
Shawn DeAngelo Vernon,
Filed June 1, 2004
Stearns County District Court
File No. K7-90-1880
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Janelle Kendall, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for respondent)
Cynthia J. Vermeulen, Vermeulen Law Office, 26 North 7th Avenue, St. Cloud, MN 56303 (for appellant)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Huspeni, Judge.
Appellant Shawn DeAngelo Vernon challenges his conviction and sentence for first-degree assault, arguing that (1) the trial court erred by allowing the state to amend the complaint on the day trial began; (2) the trial court’s response to a jury question violated procedural and substantive restrictions on such responses; (3) there was insufficient evidence to support the verdict; and (4) the trial court erred by denying his motion for a dispositional departure at sentencing. We affirm.
By complaint filed on June 28, 1990, appellant was charged with one count of first-degree assault in violation of Minn. Stat. §§ 609.021, .05, subd. 1 (1988). The state subsequently filed an amended complaint charging appellant with third-degree assault. On the first day of the jury trial, September 17, 1991, before the commencement of trial, the state filed a motion to withdraw the amended complaint and reinstate the original first-degree-assault charge. The court granted the state’s motion and offered appellant a continuance; appellant declined the offer.
At trial, the state presented testimony from three eyewitnesses who claimed to have seen appellant assaulting the victim. Appellant and five witnesses testified on appellant’s behalf, tending to minimize or deny appellant’s involvement in the incident. During deliberations, the jury sent the judge a note requesting “a clear definition of what ‘intentionally aided the other person in committing it, or has intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit it’ [means].” The court sent back a note stating:
In response to your question, the issue is not whether the defendant intended to agree, accept or assent to what was happening but whether he in some way, by word or deed, intentionally participated in the assault of [the victim] or in some way encouraged or aided others committing the assault.
The jury found appellant guilty as charged. After appellant failed to appear at his scheduled sentencing hearing in April 1992, the trial court issued a warrant for his arrest.
The FBI arrested appellant in July 2002 (10 years and 2 months after the initially-scheduled sentencing hearing), in Cincinnati, Ohio. A second sentencing hearing was scheduled. Before that hearing, and over the state’s objection, the court granted appellant’s request for an updated presentence investigation (PSI) to provide information regarding appellant’s conduct during the ten years he was at large. The updated PSI indicated that the presumptive sentence for appellant’s offense was an 81- to 91-month commitment to the Commissioner of Corrections. The PSI stated that since fleeing to Ohio in 1992, appellant had maintained steady employment, housing, and family situations.
Appellant sought a dispositional departure in sentencing, arguing that his lifestyle in Ohio demonstrated his amenability to probation. At the sentencing hearing, he called several witnesses to testify on his behalf; he also testified himself, stating that he had been “falsely accused” of the charged crime and that during his time in Ohio, he had “every intention of coming back [to Minnesota].”
The trial court denied appellant’s request for a dispositional departure and sentenced appellant to 81 months in prison, the low end of the presumptive sentence range. This appeal followed.
We note as a threshold matter that appellant has not provided this court with complete transcripts of his trial. On appeal, the appellant has the burden of providing an adequate record comprised of “papers filed in the trial court, the exhibits, and the transcript of the proceedings.” Minn. R. Civ. App. P. 110.01, 110.02, subd. 1; Minn. R. Crim. P. 28.02, subds. 8, 9; State v. Smith, 448 N.W.2d 550, 557 (Minn. App. 1989), review denied (Minn. Dec. 29, 1989).
Normally, a criminal defendant cannot obtain a new trial on appeal by establishing that error occurred in the conduct of the trial unless he provides this court with a complete transcript or an appropriate stipulation concerning what would be disclosed by a complete transcript. Without such a transcript or stipulation, we cannot verify whether the error resulted in prejudice.
State v. Anderson, 351 N.W.2d 1, 2 (Minn. 1984).
Here, the transcripts from appellant’s 1991 trial were destroyed in 2001 pursuant to standard district court transcript-retention procedure and were therefore no longer available when appellant was located and arrested in 2002. The partial transcripts of his own trial that appellant did submit were apparently prepared for the 1993 trial of appellant’s co-defendant. Where a complete transcript of the proceedings is not available, the appellant may prepare and file a statement of the proceedings pursuant to Minn. R. Civ. App. P. 110.03. “Failure to follow rule 110.03 may result in dismissal of the appeal or affirmance of the trial court’s actions, absent a showing there was a clear abuse of discretion.” Schmuckler v. Creurer, 585 N.W.2d 425, 429 (Minn. App. 1998), review denied (Minn. Dec. 22, 1998). Here, appellant filed a statement of the proceedings – including the partial transcript – that was accepted by the trial court.
Appellant argues that the trial court abused its discretion by granting the state’s motion to amend the complaint by withdrawing the amended third-degree assault charge and reinstating the original first-degree assault charge on the first day of trial. Appellant contends the amendment was improper because (1) he was not given time to obtain a medical expert to address the severity of his alleged victim’s injuries; (2) he was not given adequate time to respond to the state’s motion; and (3) there is no record evidence that the trial court properly considered whether he would be substantially prejudiced by the amendment.
The portion of the transcript concerning the motion to amend is not in the record. Appellant – by his decision to flee before his 1992 sentencing hearing – bears sole responsibility for the incomplete record. The statement of the proceedings reflects only that the trial court granted the motion over appellant’s opposition and that appellant then declined the court’s offer for a continuance. Because the existing record contains no details relating to appellant’s objections to the motion, appellant has not met his burden to provide this court with a record sufficient to preserve those objections for review. See id. Despite appellant’s urging, we are unwilling to presume that the trial court failed to properly consider the possible prejudicial effect of the state’s motion. See Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002) (holding that a district court’s judgment “carries a presumption of regularity”).
Appellant next argues that the trial court erred procedurally and substantively by responding in writing to the jury’s written query concerning the definition of the charged offense. The only evidence of this exchange in the record is the piece of paper bearing the jury’s question and the court’s response.
As to the alleged procedural violation, appellant contends that the trial court violated Minn. R. Crim. P. 26.03, subd. 19(3)(1), which provides that “[i]f the jury, after retiring for deliberation, desires to be informed on any point of law, the jurors . . . shall be conducted to the courtroom” for instructions. There is no record evidence indicating whether appellant or his counsel was notified of the jury’s question or whether the jury was conducted into the courtroom. Meaningful review of this issue is precluded by appellant’s failure to provide this court with an adequate record. We further observe that insofar as appellant claims no prejudice arising from the alleged procedural error, the trial court’s failure to comply with the procedure regarding jury questions is harmless. See State v. Holscher, 417 N.W.2d 698, 703 (Minn. App. 1988), review denied (Minn. Mar. 18, 1988).
As to the alleged substantive violation, appellant contends that the trial court violated Minn. R. Crim. P. 26.03, subd. 19(3)(1)(a), which prohibits giving an additional instruction to the jury where the jury could be “adequately informed by . . . the original instructions” and violated Minn. R. Crim. P. 26.03, subd. 19(3)(1)(c), which prohibits answering a jury question in a way that expresses the court’s opinion on “factual matters that the jury should determine.”
In response to a jury’s question on any point of law, “[t]he [trial] court has the discretion to decide whether to amplify previous instructions, reread previous instructions, or give no response at all.” State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986). “The only real limitation . . . is that the additional instruction may not be given in such a manner as to lead the jury to believe that it wholly supplants the corresponding portion of the original charge.” Id. “[I]f a jury is confused, additional instructions clarifying those previously given may be appropriate since the interests of justice require that the jury have a full understanding of the case and the rules of law applicable to the facts under deliberation.” Id. (quotation omitted).
Here, the jury presumably asked for clarification because the original instructions confused it. The trial court’s response to the jury question was taken nearly verbatim from State v. Hayes, 431 N.W.2d 533, 535-36 (Minn. 1988), where the supreme court proposed language intended to assist juries to determine what level of participation is necessary to convict a defendant of aiding and abetting a crime. The court did not abuse its discretion in giving the instruction.
Appellant also argues that the evidence presented at trial was insufficient to convict him of first-degree assault. In reviewing a challenge to the sufficiency of the evidence, we are limited to ascertaining whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the charged offense. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). We view the evidence in the light most favorable to the jury’s verdict and assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995). It is the function of the jury to determine witness credibility. State v. Tovar, 605 N.W.2d 717, 726 (Minn. 2000).
Appellant’s challenges to the sufficiency of the evidence are exclusively concerned with witness credibility and the weight accorded by the jury to various witnesses. The record before us does not justify disturbing the verdict on those grounds.
Finally, appellant argues that the trial court abused its discretion by denying his motion for a dispositional departure at sentencing. We disagree.
“An appellate court will not generally review the trial court’s exercise of its discretion in cases where the sentence imposed is within the presumptive range.” State v. Witucki, 420 N.W.2d 217, 223 (Minn. App. 1988), review denied (Minn. Apr. 15, 1988). “[T]he [Sentencing] Guidelines state that when substantial and compelling circumstances are present, the judge ‘may’ depart.” State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). Clearly, the trial court has broad discretion in deciding whether to depart from a presumptive sentence, and the reviewing court generally will not interfere with the exercise of that discretion. Id. Indeed, “it would be a rare case which would warrant reversal of the refusal to depart.” State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). We conclude that this is not that rare case.
Appellant’s primary argument in favor of his motion for a dispositional departure is his amenability to treatment, as demonstrated by his lack of prior arrest record, his age at the time of the offense, the support of his family and friends, and his law-abiding behavior since the offense. We recognize that “[a]menability to treatment (or, more generally, to probation) is by itself a sufficient basis for a . . . dispositional departure.” State v. Hamacher, 511 N.W.2d 458, 461 (Minn. App. 1994); see also State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (setting forth factors a district court considers in determining a defendant’s amenability to treatment). And the trial court found that two of the Trog factors were, in fact, present: appellant’s lack of prior arrest record and the support of his family and friends. Importantly, however, the court also observed that appellant fled the state before sentencing in 1992 and was a fugitive for over ten years. While appellant’s rehabilitation of his life is commendable, that rehabilitation occurred at a time when he was a fugitive from justice. The trial court was indisputably within its discretion in denying a dispositional departure in sentencing.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.