This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jacob Michael Dolney,
Filed September 6, 2005
Polk County District Court
File No. K6-03-1442
Mike Hatch, Attorney General,
Gregory A. Widseth, Polk County
John M. Stuart, State Public
Defender, Lydia Villalva Lijó, Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from his conviction of first-degree aggravated robbery and other offenses, appellant argues that the evidence is insufficient to support the conviction because appellant’s use of force did not accompany the taking of the property. Because the record reflects that appellant’s use of force accompanied the carrying away of the property, we affirm.
the morning of September 13, 2003, at around 4:00 a.m., Daniel Pawloski was
working as a cashier at the Ampride Convenience store in
Appellant entered the store and began walking up and down the aisles. Appellant picked up a bottle of water, opened it, and drank the water as he walked around gathering other items. Appellant brought the bottle of water and two other items up to the counter. While at the counter, appellant asked Pawloski whether there were any gravel pits in the area that would be suitable for practicing firing a gun. Pawloski testified that this question made him nervous, but he rang up appellant’s items. Appellant’s purchases, including the fuel, totaled $10.39.
A couple entered the store while appellant was at the counter talking with Pawloski. Appellant stated that he had forgotten his money and returned to his car, leaving the items on the counter. Pawloski observed appellant in his vehicle. It appeared to Pawloski that appellant was not looking for anything in his vehicle but, rather, was waiting.
After the couple left, appellant entered the store and walked up to the register, about three feet from Pawloski. Appellant reached into his jacket and pulled out a handgun. Pointing the gun at Pawloski’s chest, appellant told him to open the cash register. Pawloski, afraid of being shot, fumbled around and opened the register by hitting the “no sale” button. Before Pawloski could hand appellant any cash, Officer Daniel Chapa, an off-duty sheriff’s deputy, arrived at the store. When appellant observed the officer, he ran out of the store and drove off in his vehicle. Appellant did not receive any cash and did not pay for the gas or the bottle of water. Officers apprehended appellant shortly thereafter when he lost control of his vehicle and crashed near the home of Crookston Police Officer Chad Gobernatz, who was off duty at the time.
A jury found appellant guilty of, among other crimes, first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2002).
D E C I S I O N
challenges the sufficiency of the evidence underlying his conviction of
first-degree aggravated robbery. When
reviewing a challenge to the sufficiency of the evidence underlying a
conviction, this court conducts a painstaking review of the record to determine
whether the evidence, when viewed in the light most favorable to the
conviction, supports the verdict. State v.
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 powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery.
Appellant argues that the state failed to prove all of the elements of aggravated robbery because the “taking” in this action (i.e., appellant’s conduct of pumping gas and drinking water) was not accomplished through the use of a dangerous weapon. Moreover, because appellant made no effort to physically remove the money from the register before Officer Chapa arrived, the record reflects that appellant did not “take” any property when he actually brandished the handgun. Finally, appellant argues that his conduct while brandishing the handgun demonstrates that his objective was not to flee without paying for the gasoline and bottled water but, rather, to take money from the register, as appellant had the opportunity to flee from paying for his purchases when he left the store to search his vehicle for money.
Appellant’s argument fails because
it improperly limits application of the statute to situations when the force
accompanies the taking. In State v. Kvale, the defendant argued
that the evidence was insufficient to support his aggravated-robbery conviction
because his use of force (cutting the victim’s throat), occurred after he had
already taken the victim’s money, and, therefore, the use of force did not
facilitate the taking. Kvale, 302 N.W.2d at 651–52. The supreme court acknowledged that the
defendant did not commit a robbery if the force was used “merely as a means of
escape” with stolen property.
The court explained further:
The robbery statute speaks of using force or threats to compel acquiescence in either the taking or the carrying away of the property. It does not require that the use of force or threats actually precede or accompany the taking. It requires only that the use of force or threats precede or accompany either the taking or the carrying away and that the force or threats be used to overcome the victim’s resistance or compel his acquiescence in the taking or carrying away.
Relying on Kvale, this court has repeatedly upheld convictions of first-degree
aggravated robbery when the use of force accompanied the carrying away of
property. In State v. Brown, 597 N.W.2d 299, 303–04 (
Accordingly, while appellant correctly notes that he used no force or threat of force preceding or contemporaneously with taking the gas or the bottled water, the record contains sufficient evidence that appellant used force to accomplish the carrying away of the property. According to Pawloski’s testimony, appellant had not paid for either the gas or the bottled water when he re-entered the convenience store. Although appellant specifically asked for cash from the register when he brandished the handgun, a reasonable jury could conclude that appellant used the handgun to compel Pawloski’s acquiescence in the carrying away of the gas and the water. In other words, a reasonable jury could conclude that appellant did not intend to pay for either the gas or the bottled water upon acquiring cash from the register. Thus, the record contains sufficient evidence to support appellant’s conviction.
Appellant also makes several
arguments in his pro se supplemental brief including: (a) the district
court erred by failing to exclude Deputy Chapa’s testimony because it was
hearsay; (b) the failure to properly gather evidence suggested a conspiracy to
destroy evidence; (c) the prosecutor committed misconduct by failing to disclose
that evidence was missing until the day of the trial; (d) the district court
erred by permitting Mr. Pawloski to give testimony inconsistent with prior
statements; (e) appellant received ineffective assistance of counsel because
defense counsel failed to raise several issues at an omnibus hearing; and (f)
the district court erred by failing to remove a biased juror. The record does not reflect that appellant
raised any of these issues at the district court level. Moreover, appellant’s arguments are based
solely on assertion and are not supported by argument or authority. Accordingly, this court need not address the
issues raised in appellant’s pro se brief.
See Roby v. State, 547 N.W.2d 354, 357 (