This opinion will be unpublished and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
Filed August 29, 2006
Hennepin County District Court
File No. 04068177
Mike Hatch, Attorney General, 1800
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks,
Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Parker, Judge.*
Appellant challenges his conviction of aiding and abetting aggravated robbery, arguing that the district court erred by failing to instruct the jury on the lesser-included offense of theft and that appellant’s sentence violates Blakely v. Washington, 542 U.S. 296 (2004), and raising several issues in a pro se brief. Because the district court had the discretion to deny appellant’s request to give the lesser-included instruction, appellant’s sentence does not violate Blakely, and we find no merit in appellant’s pro se arguments on appeal, we affirm.
Vollbrecht testified at trial that he made his first delivery of groceries on
October 11, 2004, to the EZ Stop store in
Vollbrecht noticed a man across the street wearing a white dust mask over his mouth and nose. About five minutes later, a man came to the closed driver’s-side window and yelled, “I’ve got a gun. Let me in.” Vollbrecht heard a noise, and another man, later identified as appellant Eric Gable, broke the passenger-side window and unlocked the side door. Appellant jumped into the truck and managed to open the driver’s-side door, enabling the first assailant to jump in. The first assailant held an object covered by a newspaper in his hand. Appellant held a wrench.
Vollbrecht was pushed to the center, and appellant searched his pockets. Vollbrecht said he felt “terrified.” When the first assailant could not start the truck, appellant crawled across Vollbrecht to assist. Vollbrecht then “bailed” out of the truck, taking the wrench and his paperwork. He said he did not struggle with either of the men in the cab of the truck.
Vollbrecht went inside the EZ Stop and asked the manager to call the police. By the time he returned to the parking lot, appellant and the first assailant had managed to start the truck and had driven off. Vollbrecht and the EZ Stop manager pursued the truck in the manager’s car. Vollbrecht eventually saw the truck coming in the opposite direction but at that time saw only one person in the truck. A squad car was following the truck. When the driver of the truck jumped out, the police began chasing him. Vollbrecht also pursued the driver, whom he later identified as appellant.
Vollbrecht caught up to appellant first and began hitting him on the head with the wrench. Appellant fell down, and the officer arrived and arrested him. An officer found a dust mask similar to the one Vollbrecht had seen on a man right before the robbery. Vollbrecht also found a gun lying under a newspaper on the floor of the truck when he retrieved some things from the truck. A police photograph taken of Vollbrecht on the day of the incident reveals a split lip and a scratch on his back that he received when he fled the truck.
The arresting officer, Ulberg, testified at trial that appellant made several admissions on the ride to the police station, including a statement that appellant was “not guilty of carjacking because all he did was break the window and stole [sic] the truck. And he stole it because he was hungry and wanted food.”
Appellant did not testify at trial. At the close of trial, appellant moved for an instruction on the lesser-included offense of theft but specifically withdrew a request for an instruction on the lesser-included offense of robbery. The district court declined to give the instruction, agreeing with the state’s argument that force was used in the incident because the victim was physically injured so there was no rational basis for the jury to acquit on the greater charge but convict on a lesser charge. The jury convicted appellant of aiding and abetting aggravated robbery. The district court sentenced appellant to the presumptive sentence of 108 months. This appeal follows.
contends that the district court should have instructed on the lesser-included
offense of theft. “[W]e review the
denial of a requested lesser-included offense instruction under an abuse of
discretion standard.” State v. Dahlin, 695 N.W.2d 588, 597 (
evaluating the evidence, the district court must look at the evidence in the
light most favorable to the party requesting the lesser-included-offense
a court must consider whether the lesser offense is included in the charged
Appellant argues that the district court should have instructed on the lesser-included offense of theft because the arresting officer testified that appellant told the police that he was not guilty of carjacking because he only broke a window and stole the truck. Appellant contends that, from this evidence, the jury could have rationally concluded that appellant was guilty of theft but acquitted appellant of aggravated robbery. Appellant also argues that the district court erred by making a credibility determination that Vollbrecht’s testimony was more credible than the statement appellant gave to police. In his pro se brief, appellant argues that because the jury asked a question during deliberations about whether the victim left the keys inside the vehicle, the jury was considering that appellant had only committed theft and not aggravated robbery.
But the evidence that appellant highlights is merely appellant’s opinion offered to police officers that he was not guilty of a carjacking and appellant’s admission that he broke a window and took a truck. Even taking appellant’s statements to the police officers as true, the statements do not directly contradict the state’s theory of the case that appellant aided another person to rob the victim of the delivery van by force. The jury’s question during deliberations is not an appropriate basis for consideration under Dahlin, as it is not evidence admitted at trial.
The district court declined to give the instruction because force was used in the incident, evidenced by the fact that the victim was physically injured. From the record, we conclude that appellant’s statements as related in the arresting officer’s testimony did not create a rational basis for the jury to have acquitted appellant of aggravated robbery but convicted him of theft. Therefore, the district court did not abuse its discretion by denying appellant’s request for a lesser-included-offense instruction.
Appellant argues for the first time on appeal that his sentence was
imposed in violation of Blakely v.
Allen, the supreme court held that Blakely does not require a jury to make
a finding of fact regarding the existence of a custody-status point.
Appellant also argues in his pro se supplemental brief that: (1) the district court erred when it did not instruct the jury on simple robbery; (2) the evidence is insufficient to support his conviction; (3) the district court erred when it answered the jury’s question; and (4) the state failed to disclose the names of its witnesses in a timely fashion and failed to supply an emergency-call transcript and a police work order on the apprehending officer’s vehicle.
A. Failure to instruct on simple robbery
While appellant initially requested
an instruction on simple robbery, appellant’s attorney specifically withdrew
the motion during argument on the inclusion of the lesser-included theft
instruction. District courts are allowed
“considerable latitude” in the selection of language for the jury
instructions. State v. Baird, 654 N.W.2d 105, 113 (
B. Insufficient evidence
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 a light most favorable to the conviction, was sufficient to permit the
jurors to reach the verdict [that] they did.”
State v. Webb, 440 N.W.2d 426,
The evidence adduced at trial was sufficient for the jury to reasonably conclude that appellant committed aggravated robbery on October 11, 2004. Vollbrecht testified that two persons approached his vehicle. The first brandished a newspaper covering an object that he claimed was a gun and demanded to be let in the truck. The second, who Vollbrecht identified as appellant, broke the passenger window with a wrench, unlocked that door, and climbed in and then opened the driver’s door. When the perpetrators attempted to start the truck and leave, Vollbrecht escaped. The perpetrators finally got the truck started and left the EZ Stop without Vollbrecht. Therefore, appellant, one of the perpetrators, took the truck, knowing he had no claim of right to it. The police and Vollbrecht saw appellant running from the stolen truck. And according to the officer’s testimony, Vollbrecht positively identified appellant at the scene of the arrest as the person who entered the truck with a wrench. Based on this uncontested testimony, the evidence was sufficient to convict appellant of aggravated robbery.
C. Error to answer jury’s question
During deliberations, the jury asked to see the transcript to verify whether the keys were in the ignition when Vollbrecht entered the EZ Stop. Appellant, defense counsel, the prosecution, and the district court were present when the district court responded to the question. Appellant now argues that the district court erred when it told the jury members that they must rely on their memories. But appellant did not object at the time that the district court responded to the jury’s question.
A district court
has broad discretion when determining whether to allow jurors to review testimony
during deliberations. State v. Lane, 582 N.W.2d 256, 259 (
D. Alleged discovery violations
Appellant alleges that the state violated the rules of discovery under Minn. R. Crim. P. 9.01 by failing to produce 911-call transcripts, a police work order on the squad car used to transport appellant to the police station, and the names and addresses of the state’s lay witnesses so that he could do a background check for purposes of a credibility challenge on cross-examination. But the record does not support appellant’s claim. At trial, appellant’s attorney stated on the record that he had received all discovery from the state, and the prosecutor noted that she had received a request from appellant that day to run criminal background checks on the three lay witnesses. The prosecutor stated that she had run the checks, they showed no convictions, and she shared this information with the defense.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.