This opinion will be unpublished and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,
Moses Lee Crew,
Filed December 19, 2006
Ramsey County District Court
File No. K6-05-779
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Bradford Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Moses Lee Crew challenges his conviction of aggravated robbery in the second degree arguing that: (1) the evidence was not sufficient to support the conviction; (2) the district court failed to instruct the jury on lesser-included offenses; and (3) the district court erred in allowing Spreigl evidence. We affirm.
D E CI S I O N
For a claim of insufficiency of the
evidence, “our review on appeal 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 which
they did.” State v. Webb, 440 N.W.2d 426, 430 (
In February 2005, appellant entered a grocery store, put three bags of frozen shrimp inside his coat, and left the store without paying. When store clerks chased him into the parking lot, appellant swung a bag of shrimp at them. After that bag fell to the ground, appellant called to his brother to “get the pistol.” The clerks, who did not see a pistol, allowed appellant to leave the scene.
Appellant argues that he was no longer “taking or carrying away” the shrimp at the time he allegedly called for the pistol and therefore cannot be convicted of second-degree aggravated robbery. See Minn. Stat. § 609.245, subd. 2 (2004). We disagree.
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 . . . .
Here, appellant does not challenge whether he was guilty of simple robbery, but only whether he was guilty of aggravated robbery. Appellant contends that because he was no longer “taking or carrying away” the shrimp when he implied that he had a dangerous weapon, he did not imply he had a dangerous weapon while committing a robbery.
Appellant’s argument requires that we conclude that the robbery was complete when the bag of shrimp fell to the ground. But unrebutted evidence was presented that, although one bag of shrimp had fallen to the ground, appellant still carried two bags in his jacket. Assuming, as we must, that the jury believed this evidence, appellant was still in possession of two bags of stolen shrimp and still in the act of taking or carrying away the shrimp when he called to his brother to “get the pistol.”
Moreover, even if
appellant had dropped all the shrimp, we cannot say that the robbery was
complete or that enough time had passed to separate the robbery and the
statement. This court has concluded that
the evidence is sufficient to sustain a robbery conviction when the victim
immediately chases the defendant to stop him from carrying away the property,
and the defendant then uses force against the victim. See,
e.g., State v. Brown, 597 N.W.2d
299, 304 (Minn. App. 1999), review denied
(Minn. Sept. 14, 1999); State v. Burrell,
506 N.W.2d 34, 36 (Minn. App. 1993), review
On these facts, a jury could reasonably conclude that appellant implied possession of a dangerous weapon while taking or carrying away the shrimp and that the statement was intended to overcome the victims’ continued resistance to the robbery. Thus, we conclude that the evidence is sufficient to sustain the conviction of second-degree robbery.
The analysis for determining whether
to submit a jury instruction on lesser-included offenses differs depending on
whether the complaining party requested the instruction. See
Minn. R. Crim. P. 26.03, subd. 18(3). See generally State v. Dahlin, 695 N.W.2d 588 (
Appellant did not request a lesser-included-offenses instruction but argues that the district court abused its discretion by failing to issue such an instruction. Appellant contends that even though the defense sought an all-or-nothing verdict, the district court owed a duty to the jury to instruct them of their authority to convict appellant of a lesser-included offense. We disagree.
First, because this objection was
not raised below, we need not address it here.
Roby v. State, 547 N.W.2d 354,
Evidentiary rulings rest within the
sound discretion of the district court and will not be reversed absent a clear
abuse of discretion. Bernhardt, 684 N.W.2d at 474. On appeal, appellant has the burden of
establishing that the district court abused its discretion and that appellant
was thereby prejudiced.
Appellant contends that the district
court abused its discretion by admitting Spreigl
evidence of a prior robbery. Evidence of
other crimes or bad acts is characterized as “Spreigl evidence.” State v. Kennedy, 585 N.W.2d 385, 389 (
Before admitting Spreigl evidence, the district court
must first determine that (1) the state gave notice of its intent to admit the
evidence; (2) the state clearly indicated what it would offer the evidence to
prove; (3) there is clear and convincing evidence that the defendant participated
in the prior act; (4) the evidence is relevant and material to the state’s
case; and (5) the evidence’s probative value must outweigh any prejudice to the
defendant. Angus v. State, 695 N.W.2d 109, 119 (
The district court allowed the state to offer evidence of an earlier robbery to which appellant pleaded guilty. Although the earlier conviction was for simple robbery, appellant had admitted to a police officer that he had threatened the victim with a box cutter.
Appellant challenges whether the evidence was admitted for a proper purpose. The record reflects that the district court admitted the Spreigl evidence for the limited purpose of establishing a modus operandi and that the district court gave a limiting instruction before admitting the Spreigl evidence, and again in its final instructions to the jury.
Appellant argues that the Spreigl evidence was admitted for an improper
purpose because the prior offense was not sufficiently similar to the present
charge to establish a common plan or scheme.
Appellant notes that the supreme court has recently emphasized the
narrow breadth of allowable modus operandi Spreigl
evidence, explaining that the evidence must have a “marked similarity in modus
operandi to the charged offense.” State v. Ness, 707 N.W.2d 676, 688 (
Importantly, we conclude that even
if the district court erred by admitting the Spreigl evidence, on this record the error was harmless. Upon examination of the entire district court
record, we conclude that there is “no reasonable possibility” that the
allegedly wrongfully admitted evidence “significantly affected the