may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
John Rocky Mendenhall,
Filed February 25, 1997
Crow Wing County District Court
File No. K7-95-1604
John M. Stuart, Minnesota State Public Defender; Marie L. Wolf, Assistant State Public Defender, Suite 600, 2829 University Ave. S.E., Minneapolis, Minnesota, 55414 (for Appellant)
Considered and decided by Crippen, Presiding Judge, Harten, Judge and Kalitowski, Judge.
The trial court denied appellant John Mendenhall's motion for a new trial and a downward departure from the presumptive sentence for aggravated robbery. We affirm.
Appellant's acquaintance pleaded guilty to aggravated robbery and was sentenced to 84 months. Appellant was convicted by a jury and sentenced to 88 months, the presumptive sentence under the Minnesota Sentencing Guidelines, and to a six-month consecutive sentence for attempted escape. This appeal followed.
Although appellant believes that he was entitled to the downward departure because he was less culpable than his acquaintance, the record contains abundant evidence supporting the court's decision. This evidence includes Arms' testimony that appellant came behind the bar with the other robber; dug through the till pulling out cash; said to Arms, "I know this isn't all of it. Where's the rest, bitch?"; carried the money bags out of the bar; and drove the getaway car. Although the trial court may have based a downward departure on appellant's relatively more passive role in the robbery, its refusal to do so is supported by the record and was not an abuse of discretion.
To succeed on a request for a new trial based on a claim that he was deprived of an impartial jury, an appellant must show that actual prejudice resulted from the failure to dismiss the juror and that he made an appropriate objection. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983). And it is settled that a defendant who does not exhaust his peremptory challenges is not prejudiced by the need to remove a juror who should have been excluded for cause. State v. Barlow, 541 N.W.2d 309, 312 (Minn. 1995). Appellant has not shown that he needed or wanted additional peremptory challenges and has not otherwise shown prejudice connected with the incident he cites.
Moreover, because no transcript was made of the voir dire, we have no record to permit us to know how the court addressed appellant's objections to the jurors or to judge the severity of the problems he raised. We are not presented with any appearance of error on the part of the trial court in its denial of appellant's motion for a new trial.
[ ]1 Appellant's acquaintance pleaded guilty to aggravated robbery and was sentenced to 84 months. Although appellant believes that he was entitled to receive a sentence no longer than his acquaintance's sentence of 84 months, this belief is unsupported by law. State v. Vazquez, 330 N.W.2d 110, 112 (Minn. 1983) (stating that there is no requirement that a defendant's sentence be no longer than the sentence given an accomplice).