This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Christian Omar Ortiz Sanchez,



Filed September 19, 2006


Halbrooks, Judge



Ramsey County District Court

File No. K6-04-2697



Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102  (for respondent)


John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Christian Sanchez challenges his conviction of first-degree aggravated robbery, arguing that (1) he was denied a fair trial because the same attorney jointly represented him and his co-defendant, (2) the district court erred in denying his motion for a mistrial in light of alleged juror misconduct, and (3) the evidence was not sufficient to allow the jury to conclude that he committed first-degree aggravated robbery.  We affirm.


            In June 2004, Doris Sanchez, appellant’s mother, became frightened after a man driving a red truck with a “For Sale” sign on it followed her home.  The driver gave her what she perceived to be mean and dirty looks while driving back and forth past her garage and held something big and silver up to his face at one point; she thought it was a gun.  Ms. Sanchez told appellant and another son, Edward Sanchez, about the incident.  Edward Sanchez is a member of the Latin Kings street gang; appellant is not a member of a gang. 

            Two days later, Edward and a friend were riding their motorcycles when Edward saw a truck that looked like the truck that Ms. Sanchez had described.  Sitting in the passenger seat of the truck was a man who matched Ms. Sanchez’s description of the driver who had frightened her.  Edward got the truck to stop and approached the passenger side of the vehicle.  Edward asked the passenger whether he was in a gang, to which the passenger replied that he “[is] Mexican.”  When Edward asked the passenger whether he had pulled a gun on Ms. Sanchez, the passenger answered that he did not know what Edward was talking about.  Edward then told the truck’s occupants that he lived nearby and asked them to follow him to his house so that Ms. Sanchez could see him.  Edward claims that the truck’s occupants initially agreed to follow him, but that as he walked back to his motorcycle he heard one of them say, “Let’s act like we’re going to follow him but we’re not.”  Edward then returned to the truck, angry. 

            About that time, appellant arrived in a separate vehicle and went to the passenger side of the truck.  The passenger testified that appellant insulted him and then began punching him.  Edward testified that he thought that he had hit the passenger, as well.  The truck’s driver ran to a friend’s house, and the passenger eventually climbed out of the truck window and escaped.  The passenger heard someone say, “Christian” and also heard someone say, “Take the truck.  Take the truck and we’re going to burn it.”  The passenger saw Edward and his friend leave on their motorcycles and appellant drive off in the truck.  The police found the truck a few hours later in a nearby parking lot. 

            Appellant and his brother Edward were charged with first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2002), and committing a crime for the benefit of a gang in violation of Minn. Stat. § 609.229, subd. 1 (2002).  Both appellant and Edward were represented by the same attorney throughout the proceedings.  The district court cursorily advised Edward of the dangers of joint representation but did not elicit narrative answers from him to gauge his understanding of the risks.  The court never personally advised appellant of the dangers of joint representation, nor did the court elicit narrative answers from appellant to gauge appellant’s understanding and acceptance of those risks. 

            After closing arguments, and as the jury retired to deliberate, one of the jurors told a deputy that she wanted to go home and that she wanted an alternate juror to take her place.  The deputy informed the district court, and the court instructed the deputy to tell the juror that it was not possible for an alternate to take her place and that she should join the other jurors.  Just as the deputies were about to begin taking the jurors to lunch, the district court instructed the deputies to wait because the jury had submitted a question, and the district court wanted to answer it before lunch.  As a deputy attempted to get the jury back into the deliberation room, he noticed that the juror who had said that she wanted to go home was getting in an elevator.  She initially refused to exit the elevator and reenter the jury-deliberation room, but finally complied when the deputy told her that he was authorized to arrest her for contempt.  The juror swore at the bailiff as she complied.

            The district court brought the juror into the courtroom individually and asked her about the situation.  The juror explained, “I don’t have time to sit here all day.  This is a waste of my time.  I have a job to go to.  I have a father to take care of.  I don’t have time to sit here.”  The district court reminded the juror of her sworn duty, and the juror agreed to return to the deliberation room.  The district court then brought all of the jurors into the courtroom and addressed their questions, including one that stated, “There is a juror who does not wish to be here.  She has been threatened with contempt by the bailiff.  May we have an alternate?”  The district court explained that the alternates had been dismissed and reminded the jurors of their sworn duties.  The jurors then left for lunch. 

            The jury deliberated that afternoon and then was sequestered overnight.  The next day, the jury reached its verdict at about noon.  Before the district court received the verdict, a deputy reported that the problem juror had privately told the deputy at approximately 9:00 a.m. that morning that if the juror had “to go back into that room, there might be an assault.”  None of the other jurors heard her remark.  And after the deputy talked to her, the juror resumed deliberations.  But the district court asked the clerk to look up the juror’s criminal history and discovered that she had a charge of driving after revocation in 2000 for which she had failed to appear in court. 

            Counsel for appellant immediately moved for a mistrial, citing the unavailability of the juror based on her intent not to participate in deliberations and the fact that the juror had failed to disclose her driving-after-revocation charge.  Acknowledging that the process “didn’t go smoothly,” the district court nevertheless denied the motion, explaining that “it appears [the juror] cooperated with the other jurors.  There is a verdict.  I did not get a note that they reached a partial verdict or are a hung jury, but they have an agreement.”  The jury found appellant guilty of first-degree aggravated robbery, but acquitted him of committing the crime for the benefit of a gang. 

            After the jury foreperson read the verdict, the district court individually questioned the jury foreperson and another juror to determine whether any juror misconduct had taken place.  The district court determined that there was not enough evidence of misconduct to warrant a Schwartz hearing.  Appellant was later sentenced to a 48-month presumptive term of imprisonment.  This appeal follows.



            Appellant argues that the district court erred by allowing joint representation of him and his co-defendant, Edward Sanchez, at trial.  Minnesota courts disfavor joint representation because of the dangers it poses to effective assistance of counsel.  State v. Olsen, 258 N.W.2d 898, 905 (Minn. 1977).  But a defendant may waive individual representation through an “affirmative-inquiry” process that is designed to allow a court to determine whether a defendant voluntarily consents to joint representation.  State v. Walker, 696 N.W.2d 89, 93 (Minn. App. 2005), review denied (Minn. July 19, 2005).  The procedure, originally set forth by the Minnesota Supreme Court in Olsen, 258 N.W.2d at 907-08, is now codified inMinn. R. Crim. P. 17.03, subd. 5:

Dual Representation.  When two or more defendants are jointly charged or will be tried jointly under subdivisions 2 or 4 of this rule, and two or more of them are represented by the same counsel, the procedure hereafter outlined shall be followed before plea and trial.


(1) The court shall address each defendant personally on the record, advise the defendant of the potential danger of dual representation, and give the defendant an opportunity to question the court on the nature and consequences of dual representation.


(2) The court shall elicit from each defendant in a narrative statement that the defendant has been advised of the right to effective representation; that the defendant understands the details of defense counsel's possible conflict of interest and the potential perils of such a conflict; that the defendant has discussed the matter with defense counsel, or if the defendant wishes with outside counsel and that the defendant voluntarily waives the Sixth Amendment protections.


Here, it is undisputed that the district court failed to conduct the required inquiry of appellant. 

            While the district court’s failure to conduct the required inquiry does not automatically entitle appellant to a new trial, the burden shifts to the state to prove beyond a reasonable doubt that no prejudicial conflict of interest existed.  Olsen, 258 N.W.2d at 907-08.  Minnesota courts have recognized a plethora of conflicts that may arise in the wake of joint representation, including “inconsistent pleas, factually inconsistent alibis, conflicts in testimony, differences in degree of involvement in the crime, tactical admission of evidence, the calling and cross-examination and impeachment of witnesses, . . . strategy in final summation . . . [and] the added possibility of guilt by association.”  Id. at 905 (footnotes omitted).

            The state argues that there is no basis in the record for any speculation that appellant was prejudiced by the joint representation.  The state contends that the joint representation did not interfere with plea bargaining because there is no evidence that appellant considered pleading guilty and testifying against his brother.  Similarly, the state argues that appellant was not prejudiced by the joint representation at trial because the prosecutor treated the defendants separately throughout the trial and separately discussed each defendant’s involvement in the robbery.   

            While we stress our continuing general disfavor of joint representation in criminal cases, we conclude that the state has met its burden of showing beyond a reasonable doubt that no prejudicial conflict of interest resulted here.  The defenses presented at trial were not antagonistic, and the co-defendants did not try to blame the other.  Edward’s defense to aiding and abetting the aggravated robbery was that he did not tell appellant to take the truck.  Appellant did not testify, but his defense was that the taking of the truck constituted an impulsive act that was unrelated to the retaliatory attack on the victim.  Additionally, there was strong evidence of appellant’s guilt in the form of uncontroverted testimony that appellant attacked the victim and then took the truck.  See Mercer v. State, 290 N.W.2d 623, 626 (Minn. 1980) (finding no prejudicial conflict of interest when there was strong evidence of guilt).  The co-defendants’ defenses did not result in any conflict in calling or cross-examining witnesses or eliciting specific testimony.  And while Edward chose to testify, his testimony generally supported—and certainly did not contradict—appellant’s defense that the theft was spontaneous and unrelated to the motive for attacking the victim. 

            Finally, we note that the district court cautioned the jury to consider the charges against each co-defendant separately.  In State v. Greenleaf, 591 N.W.2d 488, 499 (Minn. 1999), the supreme court found that there was no prejudice when the district court cautioned the jury to consider the cases against each co-defendant separately both at the beginning and the end of trial. 

            Because the state has met its burden of proving beyond a reasonable doubt that no prejudicial conflict of interest existed here, the district court’s error in failing to properly inquire of appellant regarding the joint representation was harmless.


            Appellant contends that the district court erred in denying his motion for a mistrial based on alleged juror misconduct, arguing that a certain juror’s refusal to deliberate and “fail[ure] to conduct herself in a courteous and professional manner”  rendered the juror unavailable and therefore violated appellant’s right to a 12-person jury.  The decision whether to grant or deny a mistrial or a new trial lies within the discretion of the district court and will not be overturned absent a clear abuse of discretion.  Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994); Steinbrecher v. McLeod Coop. Power Ass’n, 392 N.W.2d 709, 715 (Minn. App. 1986). 

            A defendant charged with a felony in the state of Minnesota is entitled to a jury composed of 12 members.  Minn. Const. art. I, § 6.  The rules of criminal procedure provide that

[i]f a juror becomes unable or disqualified to perform a juror’s duties after the jury has retired to consider its verdict, a mistrial shall be declared unless the parties agree pursuant to Rule 26.01, subd. 1(4) that the jury shall consist of a lesser number than that selected for the trial.


Minn. R. Crim. P. 26.02, subd. 8. 

            While the juror’s conduct here created an unusual situation, the court acted immediately and effectively to address the juror’s initial refusal to deliberate.  The court reminded the juror of the oath that she had taken, and the juror immediately agreed to return to the deliberation room.  The record shows that while the juror may not have exhibited a pleasant attitude about her duties as a juror, she participated and cooperated in reaching the verdict.  The jury foreperson indicated that the verdict was the just and honest result of the deliberations of the 12 jurors, and the juror in question affirmed that the verdict was in fact her true and correct verdict.  The district court acknowledged that things “didn’t go smoothly,” but determined that the juror in question cooperated with the other jurors.  We conclude that the district court did not abuse its discretion in denying appellant’s motion for a mistrial.

            We note that appellant argues for the first time on appeal that the bailiff who threatened the juror with contempt acted outside of his authority and that the statement constituted an improper private communication with the jury.  Because these arguments were not previously raised, we decline to address them on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). 


            Appellant contends that the evidence at trial was insufficient as a matter of law to sustain appellant’s conviction of first-degree aggravated robbery.  In 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 allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            The jury instruction given here by the district court set forth the elements of first-degree aggravated robbery:

First, the defendant took a truck from the person of [the victim] or in the person’s presence, knowing that the defendant was not entitled to take it.


Second, the defendant used force or the threat of imminent force against [the victim] to overcome resistance or to compel acquiescence in the taking or carrying off of the truck.  The term “threat of imminent force” means the intentional creation in [the victim’s] mind of an understanding that if he resisted or refused to cooperate, force would immediately be used against him.


Third, the defendant inflicted bodily harm upon [the victim].


                        . . . .


Fourth, the defendant’s act took place on or about June 14, 2004 in Ramsey County.


The jury instruction is consistent with the elements of first-degree aggravated robbery as set forth in Minn. Stat. § 609.245, subd. 1 (2002), and 10 Minnesota Practice,CRIMJIG 14.04 (1999).

            Appellant contends that while the evidence shows that appellant intended to retaliate against the individual who had frightened his mother two days earlier, it does not show that he assaulted the victim with the intent to either overcome his resistance or compel his acquiescence so that appellant could take the truck. Appellant notes that there is no evidence that either he or Edward Sanchez demanded the keys to the truck or demanded that the occupants evacuate the truck. 

            The state argues that the jury could reasonably conclude that the reason appellant attacked the victim was to take the truck.  Appellant’s assertion that the attack was retaliatory is not inconsistent with that position.  While specific intent is an element of the robbery charge, there is ample evidence in the record that appellant had a “purposeful or conscious desire to bring about a [particular] criminal result” here.  State v. Charlton, 338 N.W.2d 26, 30 (Minn. 1983).  In light of the record and our deferential standard of review, we conclude that there was sufficient evidence for the jury to reasonably conclude that appellant attacked the victim so that he could take the truck.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.