This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
James Lee King,
Filed April 18, 2006
Hennepin County District Court
File No. 04001602
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Collins, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant James Lee King challenges his conviction of first-degree aggravated robbery arguing that the evidence was insufficient to support his conviction. In addition, in his pro se brief, appellant contends that the district court committed reversible error by (1) refraining from appointing advisory counsel during certain pretrial matters; (2) ordering advisory counsel to sit in the back of the courtroom; and (3) denying appellant’s request to consult with advisory counsel during trial. We affirm.
D E C I S I O N
Appellant argues that the evidence was not legally sufficient to support his conviction of first-degree robbery, which required a finding that he used force, because he used force to escape rather than to take property and complete the robbery. We disagree.
considering a claim of insufficient evidence, this court’s review is limited to
a painstaking analysis of the record to determine whether the evidence, when
viewed in the light most favorable to the conviction, was sufficient to allow
the jurors to reach the verdict that they did.
State v. Webb, 440 N.W.2d 426,
A defendant is guilty of simple robbery if he,
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 . . . .
“one must do more than merely use force to escape with stolen property to
commit a robbery,” the plain language of the aggravated robbery statute does
not require that the use of force precede or accompany the taking. State
v. Kvale, 302 N.W.2d 650, 652-53 (
Here, appellant found the victim in the basement of a restaurant counting money and took the money from her. Appellant ran toward the exit of the building, and the victim immediately chased after him. When the victim grabbed appellant to prevent his escape, appellant hit her. Only 35 to 40 seconds elapsed from the time that appellant took the money until the time that appellant hit the victim while still in the building. See Burrell, 506 N.W.2d at 36 (upholding conviction where defendant used force after taking the property and the entire confrontation took less than one minute). Thus, on these facts, a jury could reasonably conclude that appellant’s use of force accompanied the carrying away of the money and was intended to overcome the victim’s continued resistance to the robbery. We therefore conclude that the evidence is sufficient to sustain the conviction of first-degree aggravated robbery.
In his pro se brief appellant argues that the district court violated his right to counsel because (1) the court did not appoint advisory counsel for certain pretrial matters; (2) advisory counsel sat in the back of the courtroom during trial; and (3) the court denied appellant’s request to consult with advisory counsel.
This court reviews
issues of constitutional interpretation de novo. Star
Tribune Co. v.
1. Pretrial matters
first argues that the district court violated his constitutional right to
assistance of counsel when it did not appoint advisory counsel for pretrial
proceedings. But courts have not
interpreted either the
Here, appellant asked the district court to discharge his public defender on March 31, 2004, so that appellant could proceed pro se. The district court asked appellant several questions to ensure that appellant’s waiver was voluntary and intelligent. The court emphasized that appellant would be at a serious disadvantage if he represented himself and that the court was not able to appoint advisory counsel at that time. Appellant indicated that he understood and that he still intended to proceed pro se. The court then granted appellant’s request. When the district court later offered to appoint advisory counsel, appellant declined the court’s offer.
Because appellant knowingly, voluntarily, and intelligently waived his right to counsel and then declined advisory counsel, we conclude that the district court did not violate appellant’s right to counsel by failing to appoint advisory counsel for pretrial matters.
2. Seating arrangement
appellant contends that the district court violated his constitutional right to
assistance of counsel by ordering advisory counsel to sit in the back of the
courtroom. But appellant did not object
to the seating arrangement until after the trial and therefore has waived this
issue. See State v. Coleman, 373 N.W.2d 777, 783 (
3. Right to consult with advisory counsel
Finally, appellant argues that the district court violated his constitutional right to assistance of counsel by denying appellant’s request to consult with advisory counsel during trial. We disagree.
Minn. R. Crim. P. 5.02, subd. 2(1), “[t]he court shall . . . advise the
defendant and [advisory] counsel . . . that the defendant retains the right to
decide when and how the defendant chooses to make use of advisory counsel . . .
.” But the Minnesota Supreme Court has
also concluded that a defendant does not have an unlimited right to consult
with advisory counsel.
Here, appellant requested advice from advisory counsel during cross-examination of a witness. The judge responded, “Not right now. During a recess, if you want.” The judge then gave appellant an opportunity to speak with advisory counsel during the recess before excusing the witness. Appellant declined the court’s offer. Because the court reasonably honored appellant’s request to speak with counsel, and appellant then declined to speak with counsel, we conclude that any restriction on appellant’s access to advisory counsel was not error and did not prejudice appellant.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.