This opinion will be unpublished and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
C9-95-1930

State of Minnesota,
Respondent,

vs.

Michael G. Holeman,
Appellant.

Filed August 6, 1996
Affirmed
Willis, Judge

Ramsey County District Court
File No. KX956

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

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Willis, Judge.

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

WILLIS, Judge

Michael G. Holeman appeals his conviction of theft of a motor vehicle and second-degree assault, arguing that (1) he was denied due process of law by the state's amendment of the complaint immediately before trial, (2) the evidence is insufficient to convict him of second-degree assault, (3) the district court erred by failing to instruct the jury regarding lesser offenses, and (4) the district court erred by imposing more than one sentence. We affirm.

FACTS

Appellant Holeman was charged with theft of a motor vehicle as a result of an incident in which he allegedly took a Suzuki Sidekick from a parking lot in St. Paul. A high-speed chase followed, during which Holeman, while traveling westbound, allegedly swerved into the eastbound lane and drove the Sidekick directly toward an oncoming police squad car driven by Officer Paul Rhodes.

On the day of trial, before the jury was sworn, the district court allowed the state to amend the complaint to include a charge of second-degree assault, in which the state alleged that Holeman acted with intent to cause Officer Rhodes to have fear of immediate bodily harm. The district court denied Holeman's requests for jury instructions on careless driving and reckless driving. After jury verdicts of guilty on both counts, the district court sentenced Holeman to concurrent sentences of 54 months on the assault and 19 months on the theft.

D E C I S I O N

1. Due Process

Holeman contends he was denied due process of law when the district court allowed the state to amend the complaint on the day of trial, but before the jury was sworn. Minn. R. Crim. P. 3.04, subd. 2, provides that pretrial proceedings

may be continued to permit a new complaint to be filed * * * provided the prosecuting attorney promptly moves for such continuance on the ground:

(a) that the initial complaint does not properly name or describe the defendant or the offense charged; or

(b) that on the basis of the evidence presented at the proceeding it appears that there is probable cause to believe that the defendant has committed a different offense from that charged in the complaint and that the prosecuting attorney intends to charge the defendant with such offense.

If the district court allows needed continuances, the court is "relatively free to permit amendments to charge additional offenses before trial is commenced." State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990).

Holeman argues, however, that the amendment in this case violated due process by punishing him for exercising his right to a jury trial. The supreme court has stated that "[i]n limited situations in which action detrimental to the defendant has been taken after the defendant exercises a legal right, a presumption of prosecutorial vindictiveness will arise." State v. Pettee, 538 N.W.2d 126, 132 (Minn. 1995), cert. denied, 116 S. Ct. 1444 (1996). A presumption of vindictiveness, however, arises only where "a realistic likelihood of vindictiveness exists." Id. A realistic likelihood of a vindictive response, and therefore a presumption of vindictiveness, does not arise when a defendant demands a jury trial. United States v. Goodwin, 457 U.S. 368, 381-82, 102 S. Ct. 2485, 2492-93 (1982). If a presumption of prosecutorial vindictiveness does not exist, the defendant must prove actual vindictiveness to succeed in a due process claim. Pettee, 538 N.W.2d at 133.

Here, the record does not show that the prosecutor acted with actual vindictiveness by amending the complaint to add the second-degree assault count. Holeman's due process claim, therefore, fails.

2. Sufficiency of Evidence

Holeman contends the record does not contain sufficient evidence to prove beyond a reasonable doubt that he drove the stolen vehicle with the intent necessary to commit an assault. When a defendant challenges the sufficiency of the evidence to support his conviction, 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 which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The 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). "[A] jury normally is in the best position to evaluate circumstantial evidence, and * * * their verdict is entitled to due deference." Webb, 440 N.W.2d at 430. On appeal, a court will sustain a conviction based on circumstantial evidence "when the reasonable inferences from such evidence are consistent only with [the] defendant's guilt and inconsistent with any rational hypothesis except that of guilt." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

An assault includes "[a]n act done with intent to cause fear in another of immediate bodily harm or death." Minn. Stat. ' 609.02, subd. 10(1) (1994). "`With intent to' * * * means that the actor either has a purpose to do the thing or cause the result specified or believes the act, if successful, will cause that result." Minn. Stat. ' 609.02, subd. 9(4) (1994).

Officer Rhodes testified that as he traveled east on Third Street in his squad car with the emergency lights and siren activated, he could see from more than four blocks away the Sidekick and the squad cars chasing it in the westbound lane. He testified that as the Sidekick approached, it came into the eastbound lane and traveled directly toward his vehicle. Rhodes quickly drove his squad car into a parking place on the eastbound side of the street. The Sidekick continued traveling westbound in the eastbound lane until it passed Rhodes's squad car and then returned to the westbound lane. Rhodes testified that no obstacles or traffic obstructed the westbound lane when the westbound Sidekick swerved into the eastbound lane. He also testified that the squad cars following the Sidekick in the westbound lane never swerved, never entered the eastbound lane, and were able to pass his squad car without leaving the westbound lane.

Officer Bradley Schultz, who was in a westbound squad car pursuing the Sidekick, testified that he saw the Sidekick veer sharply left toward Rhodes's oncoming squad car. He saw the squad car pull off the road, and then he saw the Sidekick swerve back to the right and continue westbound. Schultz testified that during the chase the Sidekick previously had departed from its lane only when going around corners. He testified that there was not a corner where the Sidekick swerved toward Rhodes's squad car and that the Sidekick's veer toward Rhodes's vehicle was different from the driving behavior he had observed previously while following the Sidekick. He testified that the Sidekick was traveling at approximately 60 miles per hour when it passed Rhodes. Schultz testified that there was nothing in the road when he passed the point at which the Sidekick swerved.

Reasonable inferences from this circumstantial evidence are consistent with Holeman's intent to cause fear of immediate bodily harm; they are inconsistent with Holeman's argument that the swerve simply resulted from reckless driving or intoxication, which Holeman argues negated the requisite intent. See Alton, 432 N.W.2d at 756 (holding that a conviction based on circumstantial evidence will be affirmed if "reasonable inferences from such evidence are consistent only with [the] defendant's guilt and inconsistent with any rational hypothesis except that of guilt").

3. Jury Instructions on Lesser Offenses

Holeman argues that the district court erred by denying his request for jury instructions on lesser offenses. Holeman initially requested instructions on fleeing a police officer, DWI, driving the wrong way on a one-way street, reckless driving, and careless driving. Holeman subsequently withdrew his request for instructions on all lesser offenses except reckless driving and careless driving. As a result, the district court denied Holeman's request for instructions only with regard to reckless driving and careless driving. This court, therefore, need not address Holeman's argument that the district court erred by failing to instruct the jury regarding the lesser offense of fleeing a police officer. See Rouland v. Thorson, 542 N.W.2d 681, 684 (Minn. App. 1996) ("This court will not consider issues that the court below has not first considered and decided.").

Appellate courts will not reverse a district court's decision regarding requested jury instructions unless the district court abused its discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). The district court must instruct the jury on a lesser offense

only if the offense is a so-called lesser-included offense and only if there is evidence which produces a rational basis for a verdict acquitting defendant of the offense charged and convicting him of the lesser offense.

State v. Nurmi, 336 N.W.2d 65, 67 (Minn. 1983). Holeman concedes that reckless driving and careless driving are not lesser-included offenses of second-degree assault. The district court, therefore, was not required to instruct the jury regarding these offenses.

Holeman cites supreme court case law for his position that a district court must instruct the jury regarding lesser offenses if the evidence provides a rational basis for acquittal on the greater offense and a conviction of a lesser offense. The cases Holeman cites, however, address jury instructions regarding lesser-included offenses, not lesser offenses. See Bellcourt v. State, 390 N.W.2d 269 (Minn. 1986); State v. Adams, 295 N.W.2d 527 (Minn. 1980); State v. Lee, 282 N.W.2d 896 (Minn. 1979); State v. Leinweber, 303 Minn. 414, 228 N.W.2d 120 (1975).

4. Multiple Sentences

Holeman argues that the district court should have imposed only one sentence for his convictions of theft and second-degree assault. Minn. Stat. ' 609.035, subd. 1 (1994), provides that "if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses." Under the statute, the district court cannot impose more than one sentence if the "defendant commits multiple offenses against the same victim during a single behavioral incident." State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). But the statute permits multiple sentences if there were multiple victims and "the imposition of multiple sentences does not unfairly exaggerate the criminality of the defendant's conduct." Id. at 294.

The district court held that multiple sentences were appropriate because there were multiple victims in this case: the owner of the Sidekick and Officer Rhodes. Holeman received concurrent sentences of 54 months for the assault and 19 months for the theft. These are the presumptive guidelines sentences. See Minn. Sent. Guidelines IV (indicating presumptive sentences for various crimes). Holeman's concurrent guidelines sentences, therefore, do not unfairly exaggerate the criminality of his conduct, and the trial court did not err by imposing both sentences. See State v. Williams, 337 N.W.2d 387, 391 (Minn. 1983) (holding that when deciding whether a sentence unfairly exaggerates a defendant's criminality, appellate courts "generally will not review the trial court's exercise of its discretion in cases where the sentence imposed is within the presumptive sentence range").

Holeman argues that the district court should have imposed only one sentence because the assault occurred when he was trying to avoid apprehension for the theft. See State v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991). The avoidance of apprehension doctrine allows imposition of only one sentence for two offenses "if the defendant * * * substantially contemporaneously committed the second offense in order to avoid apprehension for the first offense." Id. Here, the theft and the assault were not substantially contemporaneous: the theft occurred at approximately 5:45 p.m. and the assault occurred more than 35 minutes later.

Affirmed.