This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
State of Minnesota,
Muhammad Ibrahim Abdul-Malik,
Hennepin County District Court
File No. 05028740
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Timothy Mulrooney and Jane E. Rydholm, Special Assistant Public Defenders, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Ross, Judge.
This case concerns an assault committed during a burglary by appellant Muhammad Abdul-Malik and his two brothers. Abdul-Malik appeals from his conviction of and sentence for aiding and abetting first-degree burglary with assault, arguing that there was insufficient evidence that he entered his brother’s estranged wife’s apartment without consent and that he knowingly aided and abetted his brother’s assault of the estranged wife’s boyfriend. Abdul-Malik also argues that the district court abused its discretion by imposing the presumptive sentence and denying his motion for a downward sentencing departure. Because we find that there was ample evidence to prove that Abdul-Malik entered and remained in the apartment without consent and stood watch during the assault, and because we hold that the district court did not abuse its discretion by imposing the presumptive sentence, we affirm.
The assault arose during an acrimonious marital separation. In February 2005, Abdul-Malik’s brother, Idris, drove with Abdul-Malik and a third brother to Idris’s wife’s apartment building in Brooklyn Park. Idris and his then-wife, J.M., had been separated since October 2004. Idris had frequently warned J.M. that he would injure any man he found with her. The state contended at trial that Idris carried out that threat with Abdul-Malik’s assistance.
After the trio arrived at the apartment building, Abdul-Malik stood alone outside J.M.’s second-floor apartment and got her attention by throwing rocks against her balcony. She opened the balcony door and asked what he wanted. Abdul-Malik answered that he wanted to give his nephew a gift. Suspicious, J.M. decided that she would go outside to get the gift from Abdul-Malik rather than to allow him in. As an extra precaution, J.M. asked a visitor to accompany her outside.
But when J.M. opened her apartment door, Abdul-Malik and his two brothers immediately rushed inside, pushing J.M. backwards to the floor. Everyone in the apartment, including J.M., screamed at them to leave but they would not. One of Abdul-Malik’s brothers, Hassan, snatched a cordless telephone from J.M.’s sister and pushed her inside a bedroom. Idris went to a bedroom where M.M., who was J.M.’s boyfriend, was sleeping. Idris began to beat him. During the beating, Abdul-Malik and Hassan blocked others from intervening. Hassan threatened to hurt anyone who moved, and he joined Idris in attacking M.M. in the bedroom. Abdul-Malik, who stands taller than six feet and weighs 345 pounds, positioned himself in the hallway between all other apartment occupants and the bedroom where his brothers continued to beat M.M.
J.M. escaped to her mother’s apartment, which is in the same complex, and she called the police. J.M.’s mother approached J.M.’s apartment and saw Idris, out of breath, running with two men toward a car. The three drove away.
Back inside J.M.’s apartment, the children were crying and there was blood on the carpet, walls, and furniture. Police arrived and found M.M. seriously injured. He was bleeding profusely from cuts to his head and eye. He could not respond to questions or identify himself. He suffered a “blow-out” fracture of his left eye socket. He also had bruises and cuts on his head that required stitches.
In a March 2005 police interview, Abdul-Malik admitted being at J.M.’s apartment during the assault and hearing the sounds of a fight after Idris entered the bedroom where M.M. was sleeping. The state charged Abdul-Malik with aiding and abetting first-degree burglary with assault in violation of Minn. Stat. § 609.582, subd. 1(c) (2004). A jury found Abdul-Malik guilty. He moved for a downward departure in sentencing, seeking only probation without incarceration based on his lack of a criminal record, cooperation with police, and family support. The district court denied the motion and sentenced Abdul-Malik to the presumptive sentence of 48 months’ imprisonment. This appeal follows.
D E C I S I O N
Abdul-Malik first argues that the state introduced insufficient evidence to prove that he participated in a nonconsensual entry into the apartment and that he knowingly aided and abetted the burglary. We review a claim of insufficiency of the evidence to determine whether a jury could reasonably conclude that the defendant was guilty of the offense charged in light of the facts in the record and all the legitimate inferences that can be drawn from those facts. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). We consider the evidence in the light most favorable to the state and assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence. Id. We also resolve any inconsistencies in the evidence in favor of the conviction. State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990). We do not search for reasonable doubt, but to determine whether the state presented sufficient evidence for a reasonable jury to conclude that no reasonable doubt existed concerning proof of the charge. State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997). We will not reverse a guilty verdict if the jury, giving due regard to the presumption of innocence and to the state’s burden to prove the defendant’s guilt beyond a reasonable doubt, could reasonably have found the defendant guilty. State v. Thomas, 590 N.W.2d 755, 757-58 (Minn. 1999).
A person commits first-degree burglary, either directly or as an accomplice, if he enters or remains in a building without consent of the person in lawful possession and assaults a person while in the building. Minn. Stat. §§ 609.582, subd. 1(c) (defining first-degree burglary), .581, subd. 4(a), (c) (2004) (defining clause “[e]nters a building without consent”). A person aids and abets the commission of a crime if he “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” Id. § 609.05, subd. 1 (2004). The state introduced ample evidence for a jury to reasonably find that the state proved both challenged elements beyond a reasonable doubt.
Entry Without Consent
Abdul-Malik contends that several purported inconsistencies in J.M.’s testimony render the evidence insufficient to establish that he entered the apartment without consent. He argues that because the state did not present testimony regarding the entry from any other witness, it did not prove this element. Abdul-Malik essentially asks us to reweigh a witness’s credibility, but assessing the credibility of witnesses and weighing their testimony are duties within the exclusive province of the factfinder. State v. Landa, 642 N.W.2d 720, 725 (Minn. 2002). The factfinder is entitled to believe the victim’s account of the events even when the testimony of the victim and the defendant differ sharply. State v. Folley, 378 N.W.2d 21, 26 (Minn. App. 1985). The factfinder also “is free to accept some aspects of a witness’s testimony and reject others.” State v. Wright, 679 N.W.2d 186, 190 (Minn. App. 2004), review denied (Minn. June 29, 2004).
According to trial testimony, Abdul-Malik appeared outside J.M.’s apartment building, presented himself as if he were alone, and he got J.M. to open her door to convey “a gift” to her child. He then repositioned himself just outside her door, even though she told him that she would meet him outside rather than let him inside. Abdul-Malik “came in at [J.M.]” and “nudged” her out of the way with his forearm as he entered the apartment with his brothers, pushing past J.M. and forcing her to the floor. J.M. and others ordered Abdul-Malik to leave, but he refused. There is no evidence that Abdul-Malik ever had a “gift” with him. J.M. testified that none of the three had ever been to her apartment. A jury could reasonably conclude that Abdul-Malik was the central character in the ruse to get the assailants into the apartment against J.M.’s will. Assuming, as we must, that the jury credited J.M.’s testimony and disbelieved Abdul-Malik’s testimony that J.M. invited them inside, the state presented sufficient evidence that Abdul-Malik entered and remained in J.M.’s apartment without her consent.
Aiding and Abetting
Abdul-Malik also argues that the state presented no evidence that he knowingly participated in the burglary or the assault on M.M. He bases this contention also on the weight of J.M.’s testimony and the purported inconsistencies between her trial testimony and her police interview. This contention also lacks merit.
The crime of aiding and abetting requires the state to show that the defendant played some knowing role in the crime and took no steps to avert its completion. Minn. Stat. § 609.05, subd. 1; State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995). A person’s criminal intent is generally proved by inferences drawn from his actions in the totality of the circumstances. State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996). Although inaction and passive acquiescence during a crime do not alone constitute culpability, “presence, companionship, and conduct before, during, and after the commission of the offense” may support the inference of a person’s intent to aid and abet another in the commission of a crime. State v. Arrendondo, 531 N.W.2d 841, 845 (Minn. 1995).
Here, the jury could reasonably infer Abdul-Malik’s knowing assistance in the burglary and assault. It heard testimony that he stood alone outside and got J.M.’s attention in order to help Idris enter. It heard evidence that Abdul-Malik was the first to forcefully enter J.M.’s apartment. It heard that he pushed J.M. out of the way and led the charge of his two brothers into the apartment. Abdul-Malik never approached the nephew for whom he supposedly brought a gift. The jury heard that Abdul-Malik did not object when Hassan snatched the telephone and threatened harm to prevent interference in the assault. It learned that Abdul-Malik also positioned himself in the hallway leading to the bedroom where his brothers assaulted M.M. Abdul-Malik testified that he heard the assault, but he did nothing to stop it. The jury heard that Abdul-Malik fled with his brothers after the assault before police arrived. On this evidence, Abdul-Malik’s acquittal of the aiding-and-abetting charge would have been remarkable.
Abdul-Malik’s next assertion, that the state presented no evidence that he participated in the assault, is of no consequence because proof of active participation in the overt act that constitutes the substantive offense is not necessary to prove aiding and abetting. Ostrem, 535 N.W.2d at 924. The state presented ample evidence for the jury to reasonably find that Abdul-Malik’s presence, companionship, close association, and conduct before, during, and after the burglary and assault evidenced his intent to aid and abet his brothers in committing the crime.
Abdul-Malik contends that the district court abused its discretion by denying his motion for a downward departure to a probationary sentence, urging that he presented substantial and compelling reasons to justify the departure. He maintains that he is amenable to probation because he had no prior convictions, had support from his family, cooperated with the police, had a positive attitude during the proceedings, and is not a threat to public safety. Because the district court considered and rejected the alleged mitigating factors raised by Abdul-Malik and provided reasons for its denial, it did not abuse its broad discretion by imposing the presumptive sentence.
The sentences set forth in the Minnesota Sentencing Guidelines are presumed appropriate for the crimes to which they apply. Minn. Sent. Guidelines II.D. A district court has no discretion to depart from the sentencing guidelines unless a defendant presents substantial and compelling circumstances to warrant a downward departure. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999); Minn. Sent. Guidelines II.D. But the decision whether to depart from the sentencing guidelines rests within the district court’s discretion, and this court will not disturb the district court’s decision “absent a clear abuse of that discretion.” State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001); see also State v. Anderson, 463 N.W.2d 551, 555 (Minn. App. 1990) (applying abuse-of-discretion standard in evaluating downward departure), review denied (Minn. Jan. 14, 1991).
Although amenability to probation may support a downward departure, it does not require departure. A dispositional departure is not mandatory even if some of the factors constituting amenability to probation are present, and the district court should not grant a downward departure simply because the defendant claims that he is amenable to probation. See State v. Trog, 323 N.W.2d 28, 30-31 (Minn. 1982) (upholding downward departure as within district court’s discretion after court found defendant amenable to probation, but declining to conclude that departure was mandatory). The presence of a mitigating factor does not oblige the district court to place a defendant on probation or to impose a shorter term of imprisonment than the presumptive sentence. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).
In deciding whether to depart from the presumptive sentence, a district court must weigh the reasons for and against departure and make a deliberate decision. State v. Mendoza, 638 N.W.2d 480, 484 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). The supreme court has recognized that only a “rare case” would warrant reversal of a district court’s refusal to depart from the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
This is not that rare case. The record demonstrates that the district court carefully deliberated before reaching its decision. It heard and considered arguments for and against Abdul-Malik’s departure motion. To counter Abdul-Malik’s argument that he was amenable to probation, the state noted that three aggravating factors argued against a downward departure: invasion of J.M.’s zone of privacy, commission of the crime in a group of three or more persons, and the presence of young children. See Minn. Sent. Guidelines II.D.2.b (providing non-exhaustive list of aggravating factors). The district court explained that it had “deliberately considered the arguments and reasoning” of Abdul-Malik’s request for a downward departure, but it found Abdul-Malik’s testimony incredible and his assertion of amenability to probation speculative for reasons identified on the record. It concluded that Abdul-Malik did not present substantial and compelling reasons for the court to depart downward from the presumptive sentence of 48 months’ imprisonment. Because the district court deliberately considered the relevant factors, it did not abuse its discretion by imposing the presumptive sentence.