This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-95-1482

C5-95-1505

State of Minnesota,

Respondent,

vs.

Evangeline Shirley Bourcy,

Appellant (C8-95-1482),

Richard Burt Bourcy,

Appellant (C8-95-1505).

Filed June 4, 1996

Affirmed

Crippen, Judge

Mahnomen County District Court

File No. K094233

Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, Suite 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Gerald Paulson, Mahnomen County Attorney, Mahnomen County Courthouse, 311 North Main Street, Mahnomen, MN 56557 (for Respondent)

John M. Stuart, Minnesota Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Ave. SE Suite. 600, St. Paul, MN 55414 (for Appellants)

Melissa Victoria Sheridan, Assistant Public Defender, 875 Summit Avenue LEC 304, St. Paul, MN 55105 (for Appellants)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Foley, Judge.*

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Having been convicted of aggravated robbery, appellants Shirley and Richard Bourcy seek a new trial, alleging several trial court and prosecutorial errors. We affirm.

FACTS

In March 1995, Shirley Bourcy and her son, Richard Bourcy, then age 21, were convicted for the armed robbery of the Flowing Well Supper Club, located on Highway 200 in Mahnomen, Minnesota, in July 1994.

Shirley Bourcy was an "off and on" customer at the Flowing Well. On the day of the robbery, she went to the Flowing Well in the late morning, had a few drinks, and bought some pulltabs. She was accompanied by Richard Bourcy, who testified that this was the first time he had ever been in the Flowing Well. The two left the supper club after about an hour; Shirley Bourcy said she was going to the casino.

Shirley Bourcy returned to the Flowing Well by herself later that afternoon. She had a drink and purchased some more pulltabs. When she received a winning pulltab, a waitress paid her by getting money out of the pulltab drawer, located directly in front of the place where Shirley Bourcy was seated. From this seat, Bourcy had full view of the money in the drawer. On this second visit to the supper club, Bourcy stayed for approximately 15-20 minutes.

Minutes after Bourcy left, an armed, masked man walked into the Flowing Well and said something to the effect of "this is a robbery." When it appeared that people in the bar thought he was joking, the man said he was not kidding and fired his gun at the ceiling. The man proceeded to order the customers to lie down in the back of the bar and ordered the bar's owner and a waitress, who were standing behind the bar, to give him the money out of the till. When the owner handed him the money from the till, the man ordered the owner to give him the pulltab money also. After receiving the money, the man fled. Witnesses observed that the man was approximately 5'10 to 6' tall and wore a brown and green camouflage jacket, pants, and tennis shoes.

A waitress who had been in the kitchen during the robbery sneaked out the back door of the bar and walked around to the front of the building where she noticed a person in dark clothing running east on the south side of Highway 200. The Flowing Well's owner's brother, who was present in the bar during the robbery, observed the man who had robbed the bar running east down Highway 200, on the right-hand side of the road.

At about the time of the robbery, a longtime neighbor of the Bourcys was driving east on Highway 200. She drove by the Flowing Well and shortly thereafter noticed a man running east on the right side of the road. She noted that he was wearing a 3/4 length camouflage coat with a hood. As she drove by, she slowed down to see if she recognized the person and could offer him a ride. She observed that the man was her neighbor Richard Bourcy, but chose not to offer him a ride and proceeded east on Highway 200 where she continued over a hill and saw Shirley Bourcy's full-size pickup truck stopped on the side of the road with its engine running and Shirley Bourcy in the driver's seat. Thinking that Shirley Bourcy might be stalled, especially after just seeing Richard Bourcy on the road, the neighbor slowed down, but at that point Shirley Bourcy moved the truck forward, indicating that she wasn't having any trouble, and the neighbor continued on her way home.

Another driver was also in the area of the Flowing Well around the time of the robbery. He testified that while driving west on Highway 200, approximately 1/2 mile before the supper club he noticed a full-size pickup truck with a woman driver stopped on the side of the road. It appeared to the driver that the truck was pulling out, which he thought was odd because there was no driveway at that point in the road. The driver continued west, and as he descended a hill, noticed a person, who looked like a man, running east, approximately 50 to 75 yards from the crest of the hill. The person was wearing a raincoat, which he used to shield his face. The driver also testified that the person covered his face with his hands as he passed.

A little later, two acquaintances of the Bourcys were stopped by the side of the road near County Road 7, east of the Flowing Well on Highway 200. They saw a full-size pickup driven by Shirley Bourcy, with Richard Bourcy in the passenger seat, pass them at high speed. Richard Bourcy looked at the men but did not acknowledge them. The men observed the pickup turn north on County Road 7.

Four days after the robbery, authorities executed a search warrant at the home of appellants Shirley and Richard Bourcy and located a gun. Investigators later determined that the bullet found in the ceiling at the Flowing Well was fired from the gun authorities found under a mattress in the Bourcys' home. Richard Bourcy testified that he and two acquaintances found the gun in the ditch on the side of Highway 200 the day after the robbery. Both appellants denied any involvement in the crime.

Responding to the state's motion to consolidate the two prosecutions, the trial court ordered that appellants be tried jointly. At the start of trial, appellants moved for a continuance to give them additional time to locate two previously undisclosed potential witnesses. Observing that the matter had already been continued for one month, the trial court denied the motion. The trial then proceeded over the next six days and the jury returned a guilty verdict against each appellant. Shirley Bourcy, who had no criminal history score, was sentenced to the sentencing guidelines presumptive term of 48 months. The trial court gave her credit for time served and ordered her to pay $50 in surcharges and $1,400 in restitution, jointly and severally with Richard Bourcy. Richard Bourcy was sentenced to the sentencing guidelines presumptive term of 78 months, based upon his criminal history score of 3. The trial court also gave him credit for time served and ordered him to pay $50 in surcharges and $1,400 in restitution, jointly and severally with Shirley Bourcy.

Both appellants moved unsuccessfully for a new trial. Appellants then initiated separate appeals, which were consolidated by order of this court.

D E C I S I O N

Appellants Shirley and Richard Bourcy (1) challenge the sufficiency of the evidence supporting their convictions, (2) argue the trial court deprived them of their constitutional right to compulsory process by denying them a continuance to locate additional witnesses, and (3) claim the prosecutor committed prejudicial misconduct. Shirley Bourcy also contends that the trial court abused its discretion by sentencing her to a presumptive prison term rather than staying execution of her sentence and placing her on probation. Richard Bourcy alleges the trial court erred in calculating the amount of restitution he owed.

1. Sufficiency of the evidence

We must affirm the guilty verdicts if they represent reasonable conclusions, viewing the evidence in a light most favorable to the state and assuming the factfinder believed the state's witnesses and disbelieved any contrary evidence, but with due regard for the state's burden of proving appellants' guilt beyond a reasonable doubt. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

Appellants claim there are grave doubts about their guilt. For example, they argue that their neighbor's identification of the runner as Richard Bourcy was too suspect to support the convictions because she only saw the runner momentarily as she passed him on the same side of the highway. Further, appellants allege that they provided a reasonable explanation for their presence by the side of the road at the time of the robbery (i.e. an oil check) and that other than the gun, there was no physical evidence connecting the Bourcys to the crime.

Viewed in a light most favorable to the conviction, however, the evidence supporting appellants' convictions was sufficient to permit the jurors to reach their verdict.

2. Compulsory process

An accused in a criminal case has a constitutional right "to have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI; Minn. Const. art. I, ' 6. But the decision to grant a continuance is vested in the discretion of the trial court, State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984), and the trial court will not be reversed absent an abuse of its discretion. State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980). A reviewing court looks at the circumstances surrounding the requested continuance and determines whether the denial was so prejudicial to the preparation of an adequate defense as to "materially affect the outcome of the trial." Lloyd, 345 N.W.2d at 247. In determining whether an appellant's constitutional rights have been violated, the reviewing court should consider whether the appellant sufficiently showed, at the time he moved for a continuance, that the missing witnesses would be found within a reasonable time and would provide favorable evidence. State v. King, 414 N.W.2d 214, 219 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).

Appellants argue they were denied their right to compulsory process because the trial court refused their motion for a continuance on the first day of trial. Appellants asked for the continuance in order to gain more time to locate two witnesses who were said to be with Richard Bourcy when he allegedly found the gun in the ditch. The witnesses were known by Bourcy only by their first names and they were believed to be "somewhere" in the Twin Cities. The defense investigator already had been attempting to locate the men but was unable to find them. Counsel explained that the men were friends of Bourcy's young female cousin who lived in the Twin Cities, but that the girl had run away from home and was out of contact with her family and therefore unable to lead investigators to the men's whereabouts. Nonetheless, appellants argue it was logical to expect that the men would be found within a limited amount of time because it was "reasonable to assume [the runaway girl] would contact her family in the very near future."

The trial court's decision to refuse the continuance in these circumstances was within the parameters of its discretion. See State v. Miller, 488 N.W.2d 235, 240 (Minn. 1992) (trial court refusal to grant continuance did not materially prejudice outcome of trial where circumstantial evidence implicating appellant was sufficient to sustain jury convictions and trial court had already granted one previous continuance). Appellants' assertion that they could produce the witnesses within a reasonable amount of time and that the witnesses would then produce favorable testimony was patently tenuous. The process of locating the supposed witnesses hinged on the cooperation of a missing runaway girl. See King, 414 N.W.2d at 219 (trial court's denial of continuance was constitutional where defendant did not show he was able to produce witness within a reasonable time or that witness's testimony would be favorable).

3. Prosecutorial misconduct

When misconduct of a prosecutor is serious, a new trial must be granted unless it is certain beyond a reasonable doubt that the error was harmless. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). But reversal for less serious misconduct is appropriate only if the misconduct played a substantial part is influencing the jury to convict. Id.

Appellants argue that the prosecutor intentionally committed prejudicial misconduct in several respects, although appellants objected to only one incident of alleged misconduct during trial. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (defendant's failure to object to improper prosecutorial statement or to seek curative instruction, allowing trial court to attempt to ameliorate effect, weighed heavily against reversal).

Appellants claim the prosecutor committed misconduct by asking two police witnesses if they were "sworn" officers and inquiring what that meant, thereby implying that they were more credible and honest than "regular" witnesses, and by then asking a defense investigator if he had taken an oath of service, which he had not, implying that his testimony was less credible than the police witnesses. But, "[i]t is standard practice for prosecutors to ask police officers preliminary background questions to establish they are trained police officers." State v. Fader, 358 N.W.2d 42, 47 (Minn. 1984). Moreover, the police officers and defense investigator were relatively minor witnesses in this case, making it unlikely their testimony materially affected the jury's decision.

Appellant Shirley Bourcy also claims the prosecutor improperly asked the owner of the Flowing Well if Bourcy had ever written "dishonored" checks, implying that she was "predisposed as a thief." But during trial appellants' counsel objected to the question regarding dishonored checks, and the trial court sustained the objection. In addition, the trial court instructed the jury not to speculate as to possible answers to questions for which no answer was required, the prosecutor's comment was isolated, and the evidence against appellant was strong. See Washington, 521 N.W.2d at 40-41 (trial court's instructions to jury, isolation of improper comment, and strength of evidence against defendant are relevant in determining whether jury was unduly influenced by improper comments). Also, it is not clear that the prosecutor intended to commit misconduct, as the prosecutor ceased questioning on the subject of dishonored checks immediately after defendants objected.

Finally, appellant Richard Bourcy objects to a portion of the prosecutor's opening statement, claiming that it implied that the prosecutor had a "lofty dedication to seeking out the truth" that the defense did not. This argument is without merit.

Considering the record as a whole, the alleged prosecutorial misconduct is not so serious or prejudicial as to warrant reversal of appellants' convictions, as appellants suggest.

4. Sentencing

Only in a "rare" case will a reviewing court reverse a trial court"s imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Appellant Shirley Bourcy claims the trial court improperly sentenced her to the guidelines presumptive sentence because she is "particularly amenable to probation" due to her age, lack of prior felony convictions and family status. Shirley Bourcy also contends that the trial court erred because "it is not clear that the trial court even considered whether [she] was particularly amenable to probation * * *."

At the sentencing hearing, after listening to arguments both for and against probation, the trial court stated that it was denying appellant's request for departure. Following the sentencing hearing, in a memorandum dated April 19, 1995, the trial court wrote that departure from the sentencing guidelines was "not appropriate," noting "[a] mother who aids and abets her young son, age 21, in the commission of a crime of violence is not entitled to departure." This is not the rare case justifying reversal of the trial court's imposition of the presumptive sentence.

5. Restitution

The trial court has broad discretion in imposing restitution. State v. Olson, 381 N.W.2d 899, 900 (Minn. App. 1986); Minn. Stat. § 609.10(5) (1994) (court may order restitution in addition to imprisonment). Minn. Stat. § 611A.045, subd. 1(1) (1994) provides that in determining the amount of restitution, the court shall consider the amount of economic loss sustained by the victim as a result of the offense. Subdivision three states that "[a] dispute as to the proper amount * * * of restitution must be resolved by the court by the preponderance of the evidence" and that the "burden of demonstrating the amount of loss sustained by a victim as a result of the offense and the appropriateness of a particular type of restitution is on the prosecution."

Appellant Richard Bourcy, ordered to pay $1,400 in restitution jointly and severally with his mother, challenged that amount in a sworn affidavit as required by Minn. Stat. § 611A.045, subd. 3, claiming that $432 of the restitution amount was appropriate because it represented the amount of money taken from the bar's till during the robbery, but that the remaining $968 of the restitution amount was only an estimate of the money taken from the pulltab drawer. The trial court denied appellant's request to modify restitution.

Appellant now alleges that because the Flowing Well's owner did not know the exact amount he lost on pulltabs and estimated at one point during trial that the loss was anywhere between $800 to $1,000, the state only proved $800 in loss, not $968. Recognizing that the Flowing Well owner signed a sworn affidavit for restitution, stating that his pulltab loss was $968, and that his trial testimony did not contradict this amount, we find that the prosecution sufficiently met its burden of establishing a pulltab loss of $968.

Affirmed.


Footnotes

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