This opinion will be unpublished and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
Ramsey County District Court
File No. KX034488
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, Minnesota Public Defender, Ted Sampsell-Jones, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Huspeni, Judge.*
Appellant challenges his conviction of and sentence for first-degree aggravated robbery, arguing that the evidence was insufficient to support the conviction, the district court committed plain error in failing to instruct on the lesser-included offense of simple robbery, and the district court abused its discretion in denying his motion for a downward-departure sentence. Because the evidence is sufficient to support the conviction, the district court did not err in failing to sua sponte instruct on a lesser-included offense and the court did not abuse its discretion in sentencing, we affirm.
O.M.S., the robbery victim, owns a
As O.M.S. approached her car, she saw two men standing in the alley near the parking lot, about two car lengths from her vehicle. The men pulled bandanas over their faces, ran toward her, and when they got close she “saw that there were two guns.” The men ran to opposite sides of her car, and she saw that the man closest to her wore a “striped shirt.” She saw that the man on the other side of her car had a gun but did not notice what he was wearing. Each man pointed a gun in her direction and the man closer to her took her purse.
Around this same time, O.M.S.’s brother, T.M., who lived in an apartment above the restaurant, was driving into the parking lot after his second-shift job. He was still in his car when he saw the two men approach his sister. A.P. also saw the men approach O.M.S. Both A.P. and T.M. saw the men interfering with O.M.S. and realized that something was wrong. They ran toward the commotion. Neither man saw guns.
After the robbers took O.M.S.’s purse, they ran into the
alley and toward
A.P. lost sight of the men when he turned to talk to T.M., who was returning to the parking lot to get his car. A.P. then jumped over the fence and caught up to O.M.S., who had already jumped over the fence. O.M.S. told A.P. that the robbers were getting away and he asked, “where?” O.M.S. pointed. A.P. looked in the direction O.M.S. indicated and saw a “black pickup truck” driving very fast down the street. He ran after the truck and could not get the license-plate number, but saw the truck turn and head north. A.P. was simultaneously calling 911 to report the robbery. He informed the 911 operator that there were no weapons involved. He later testified that he told the operator this because he had not seen any weapons.
A patrol officer who was driving in the area heard the dispatch report of a recent robbery and the description of the suspects as two black males in a black pickup truck. As he reached the next intersection, 11 blocks from the site of the robbery, he saw what he believed to be the suspect vehicle going north. Shortly thereafter, police stopped the truck without incident and removed appellant, who was the driver, and two passengers, Artevis Glaze, and Tony Chan, from the truck. Police recovered two bandanas, an air gun, and another gun from the cab of the truck. They also recovered from Glaze a large sum of cash, approximately the sum O.M.S. had in her purse.
The police took O.M.S. and her brother to the location of the stop. At trial, the prosecutor showed O.M.S. three pictures taken of the three men at the time of the stop. She identified the photos as depicting the three men the police caught. She matched appellant to his photo. She identified the man in the photograph with the checked shirt as the one who took her purse. O.M.S. testified that she knew appellant because she had spoken with him many times at her restaurant.
O.M.S., who was born in
The jury convicted appellant of aiding and abetting first-degree aggravated robbery. Appellant moved for a downward dispositional departure, requesting probation based on his lack of prior felony convictions, his numerous friends and family support, and his steady employment history. He also argued that there were mitigating offense-related factors supporting a downward departure, including his relatively limited role in the crime.
At the sentencing hearing, appellant’s counsel argued in favor of a dispositionaldeparture, but did not request a durational departure. The state argued that this was a typical offense with no substantial, compelling, or mitigating reasons to depart.
The district court stated:
I did have an opportunity to review [appellant’s motion] in advance and consider the motion. I considered the motion in light of the evidence in the case, in light of the Presentence Investigation . . . . And I do not find that there are any substantial and compelling circumstances to warrant a departure from the guidelines in this case.
The district court sentenced appellant within the sentencing guidelines to 44 months. This appeal followed.
D E C I S I O N
I. Sufficiency of evidence
When reviewing a claim of insufficient evidence, this court
carefully analyzes the record and any legitimate inferences that may be drawn
from it to determine whether the jury’s verdict is reasonably supported by the
evidence. State v. Webb, 440 N.W.2d 426, 430 (
When a conviction is “based entirely on circumstantial
evidence” it warrants “stricter scrutiny than convictions based in part on
direct evidence.” State v. Jones, 516 N.W.2d 545, 549 (
Appellant was charged with aiding and abetting first-degree
aggravated robbery. The state had the
burden of proving that appellant intentionally aided, advised, hired,
counseled, or conspired with or otherwise procured the other two men to commit
the robbery. See
Evidence of participation in the escape portion of a robbery,
as the driver of the “getaway” car, is participation in the offense itself
creating aiding-and-abetting liability. See, e.g., State v. Ritchie, 292
“[A] jury is free to question a defendant’s credibility based
upon inconsistencies in his
statement to police. The jury has no obligation to believe a
defendant’s story.” Bliss, 457 N.W.2d at 390 (citation omitted). Significant inconsistencies in a defendant’s
statements to police may be considered as evidence supporting a conviction.
Appellant’s argument is that several of the alleged inconsistencies in his story, which the prosecutor cited during her closing argument, were consistent statements. But, regardless of whether the single statement appellant actually addressed, i.e., the alleged inconsistencies in his statements regarding where he had been and where he was going at the time of the offense, involved a factually incorrect or improper statement by the prosecutor, the prosecutor accurately pointed out several other internal inconsistencies in appellant’s statement and conflicts between his statement and the testimony of other witnesses. The jury was entitled to resolve these conflicts against appellant. Bias, 419 N.W.2d at 484. The prosecutor accurately noted in closing that appellant’s statement to police that he drove fast at the robbers’ insistence conflicted with the testimony that appellant was not speeding when he was pulled over. The prosecutor also pointed out that appellant had admitted he had a fake gun in the car to protect himself, and the evidence showed appellant’s gun was on top of the center console in the truck, yet appellant did not use the gun to ward off the alleged carjackers. The prosecutor noted an inconsistency between appellant’s version that he had been carjacked and the testimony that he did not tell the officer who arrested him or transported him to the station that two men had just pointed a gun at him and forced him to drive.
This court’s role is not to evaluate credibility or retry the
facts. State v. Merrill, 274 N.W.2d 99, 111 (
II. Failure to instruct on lesser-included offense
Appellant argues that the district court’s failure to sua sponte instruct the jury on the lesser-included offense of simple robbery was plain error requiring reversal. Appellant concedes that he did not preserve this issue for appeal by requesting the instruction or by objecting to the jury instructions given at trial. The state argues that appellant has not met his burden of showing prejudice warranting a new trial under the plain-error test.
The supreme court has adopted a three-part test for
plain-error review. State v. Griller, 583 N.W.2d 736, 740 (
The Supreme Court has stated that the plain-error doctrine in
the federal system authorizes appellate courts “to correct only particularly
egregious errors, those errors that seriously affect the fairness, integrity or
public reputation of judicial proceedings.
In other words, the plain-error exception . . . is to be used sparingly,
solely in those circumstances in which a miscarriage of justice would otherwise
result.” United States v. Young, 470
In State v. Dahlin,
the supreme court stated that “absent plain error affecting a defendant’s
substantial rights, a trial court does not err when it does not give a
warranted lesser-included offense instruction if the defendant has impliedly [,
i.e., by failing to request it, ] . . . waived that instruction.” 695 N.W.2d 588, 598 (2005). Dahlin
clarified that where the evidence warrants, a requested instruction on a lesser-included offense must be given.
The case appellant cites that is most on point, State v. Gustafson, involved an
appellant’s contention that the district court should have given a self-defense
instruction sua sponte when it was
not requested. 610 N.W.2d 314, 318 (
In this case, an instruction on simple robbery as a lesser-included offense would have been required had appellant requested the instruction, but the court was not required to sua sponte give such an instruction when the defense was that appellant had nothing to do with any robbery, simple or aggravated. We conclude, therefore, that the district court did not err in failing to sua sponte instruct on the lesser-included offense, and because there was no error, we need not address the “prejudice” prong of the plain-error analysis.
The district court has broad discretion in determining
whether to depart from the sentencing guidelines and will not be reversed
absent an abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (
The Sentencing Guidelines establish presumptive sentences
that specify the duration and the presumptive disposition.
If the district court does have discretion to depart from a presumptive sentence, i.e., if mitigating factors are present, it must exercise that discretion by deliberately considering reasons for as well as against departure. State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984) (remanding imposition of presumptive sentence when district court simply stated that there were no legitimate bases for departure, but this court found several bases in the record that would support a downward departure; this court concluded that it was a case in which discretion was simply not exercised).
Appellant argues the district court abused its discretion in not granting a downward departure and that the record indicates the court failed to exercise its discretion.
(1) The victim was an aggressor in the
(2) The offender played a minor or passive role in the crime or participated under circumstances of coercion or duress.
(3) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants (drugs or alcohol) does not fall within the purview of this factor.
Appellant cites his “minor and passive role” in the offense
and the fact that the other two robbers were apparently not criminally punished
by the time of this appeal (one having been acquitted and the other pending retrial
after a mistrial) as the two mitigating reasons to depart durationally. But appellant
did not seek a durational departure in the district court, therefore this issue
is not properly before us on appeal. See Perkins v. State, 559 N.W.2d 678,
Appellant cites State
v. Bendzula in support of his argument that the court should have departed
based on his codefendants’ avoidance of punishment. 675 N.W.2d 920 (
Dispositional-departure factors differ from the fixed determinate-sentencing
factors that apply to durational departures, and generally focus on assessments
of an offender’s personal characteristics to determine whether a dispositional
departure is appropriate. When
considering whether to depart dispositionally, “the district court can focus
more on the defendant as an individual and whether the presumptive sentence
would be best for the defendant and for society,” as opposed to the
offense-related factors relevant to a durational departure. State
v. Allen, 706 N.W.2d 40, 46 (
One of the factors appellant cites in his brief in support of a dispositional departure, that there is reason to believe he will be victimized in prison, was not argued to the district court as a reason to depart, and will not be considered on appeal. Appellant argues his lack of a felony record and his “minor role” in the robbery as proof that he is not violent and does not pose a danger to society if sentenced to probation rather than prison. But appellant’s gross-misdemeanor offense record for domestic assault weighs against the contention that he is not a violent person, and, as discussed above, the “minor role” issue is not clearly a mitigating factor in this case.
Appellant contends that the district court’s failure to
expressly weigh each asserted mitigating factor on the record demonstrates its
failure to exercise discretion. Appellant relies on Curtiss and State v.
In Curtiss, this
court remanded for reconsideration of departure factors. The district court had simply stated that
there were “no justifiable reasons” for departure and imposed the presumptive
sentence. 353 N.W.2d at 263. We determined that the record in that case
contained “legitimate reasons for departure” including the defendant’s young
age and that the behavior that led to his conviction (taking bottles of beer
from the breezeway of an occupied house) was “barely within the scope of the
serious charge” of first-degree burglary.
In this case, we conclude that the court’s statement that it considered appellant’s motion, evidence in the record, and information in the PSI, demonstrates that the district court exercised its discretion in denying appellant’s motion for a dispositional departure, and we cannot conclude that the district court abused its discretion in sentencing.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Simple robbery is a lesser-included offense of
aggravated robbery. State v. Oksanen, 276
Appellant cites Beck v. Alabama, 447