This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-97-853

State of Minnesota,

Respondent,

vs.

Michael T. Miller,

Appellant.

Filed July 7, 1998

Affirmed

Holtan, Judge*

Olmsted County District Court

File Number K596760

Hubert H. Humphrey III, Attorney General, Hilary Lindell Caligiuri, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, 151 Fourth Street S.E., Rochester, MN 55904-3710 (for respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Paul C. Thissen, Assistant State Public Defenders, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414-3230 (for appellant)

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

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Holtan, Judge.

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

HOLTAN, Judge

Appellant challenges his convictions and sentences on the grounds that he was denied a fair trial because the district court refused to change the venue of his trial, that the district court erred in entering judgments of conviction where the charges were not supported by sufficient evidence, and that the district court erred in (1) imposing separate sentences for the same behavioral incident; (2) imposing consecutive sentences; (3) departing from sentencing guidelines; and (4) allowing people who were not direct victims of the crimes to testify at sentencing. We affirm.

FACTS

On March 12, 1996, appellant Michael Tyrone Miller went on a crime spree in Rochester, Minnesota. At approximately 7:00 p.m., Miller accosted S.M. with a gun in a parking lot. Miller forced S.M. into the passenger seat of her car, demanded and took her money and property, and drove to an alley where he forced her to perform oral sex; he then penetrated her vaginally. He then forced S.M. into the trunk of her car. Next, Miller returned to the parking lot and accosted J.F. with his gun, slammed her into the side of her car, robbed her, and hit her in the shoulder.

Next, Miller rear-ended a car driven by J.C. While J.C. was looking at the damage to her car, Miller demanded property from K.C., J.C.'s daughter, who was still sitting in the car. J.C. noticed this and approached Miller. Miller forced her into her car, pointed a gun at her, and took her valuables. Miller did not take anything from K.C., but he struck J.C., causing two small cuts on her lip.

Miller then drove around, eventually returning to the same alley where he had sexually assaulted S.M. He forced S.M. out of the trunk and sexually assaulted her in much the same manner. Later, with S.M. in the backseat, Miller rear-ended J.W.'s car. As J.W. looked at the damage, Miller approached E.W, J.W.'s daughter, threatened her with his gun, and demanded money. J.W. asked him what he was doing and Miller went to the back of the car and hit her twice. J.W. ran away with Miller in pursuit. Miller fell, then returned to J.W.'s car. J.W. turned and chased Miller. Miller leaned into the car and struck E.W. three or four times, creating a two-by-five centimeter wound that went to the bone and required many stitches.

Miller drove away. J.W. called 911 and started chasing him in her car, informing the 911 dispatcher of her location. With the police in pursuit, Miller directed the car towards a river and jumped out, leaving S.M. in the backseat. The car plunged into the river and S.M. swam to safety. The police apprehended Miller after a short foot chase.

Defense counsel made a motion to change venue because of strong community sentiment and widespread pretrial publicity. The district court denied the motion. At voir dire, one potential juror, B.R., made comments in the presence of other venirepersons that Miller was probably guilty and if he was shot, taxpayers would not have to spend money on the trial. One of the venirepersons who overheard the comments was eventually impaneled. B.R. was removed for cause.

The district court individually questioned prospective jurors and inquired whether they believed they could make a fair and impartial decision. After the jurors were seated, the defense again made a motion to change venue, and the district court denied this motion. The jury found Miller guilty of two counts of first-degree criminal sexual conduct, one count of kidnapping, four counts of first-degree aggravated robbery, two counts of second-degree assault, and two counts of first-degree attempted aggravated robbery. Further, the jury found Miller not guilty of second-degree assault of J.W. but found him guilty of fifth-degree assault of J.W.

At sentencing, three victims, three relatives of victims, and a crime victim's advocate made statements. The district court sentenced Miller to 480 months for kidnapping; 161 months for one count of criminal sexual conduct; 161 months for the other count of criminal sexual conduct; and 240 months for aggravated robbery for offenses against S.M. Miller will serve the criminal sexual conduct sentences and the sentence for aggravated robbery against S.M. concurrent with the kidnapping offense. The district court sentenced Miller to 240 months each for the aggravated robbery offenses against J.F., J.C., and K.C. to be served consecutively to the kidnapping sentence. Further, the district court sentenced Miller to 120 months each for the attempted aggravated robbery offenses against J.W. and E.W. to be served consecutively. The district court designated Miller as a career offender and noted a number of aggravating factors to justify its sentencing departure. This appeal followed.

D E C I S I O N

I.

A defendant must demonstrate that he was actually "prejudiced by the publicity" in order to show that a reversal is required. State v. Beier, 263 N.W.2d 622, 626 (Minn. 1978). "The test is whether a prospective juror can set aside his impression or opinion and render an impartial verdict." State v. Kinsky, 348 N.W.2d 319, 323 (Minn. 1984). "The [district] court is in the best position to determine whether jurors can be impartial * * *." State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990). If jurors indicate to the satisfaction of the district court that they can be impartial, a reviewing court "will not lightly substitute its own judgment." Id. at 709. The district court also has broad discretion in determining whether to grant a motion for change of venue, and its determination will not be disturbed absent a clear abuse of discretion. State v. Fratzke, 354 N.W.2d 402, 406 (Minn. 1984).

Miller contends that he was denied a fair trial because of extensive pretrial publicity as demonstrated by (1) an emotionally charged courtroom atmosphere, and (2) inflammatory and prejudicial statements about Miller's guilt made by a prospective juror to another prospective juror, who was eventually impaneled. We disagree. Here, the record shows that (1) the jurors, during individual questioning by the district court, stated that they could be impartial and (2) the juror who overheard the improper comments also indicated his ability to be impartial and the district court noted that this juror was "very responsible and conscientious." See Drieman, 457 N.W.2d at 708-09 (deferring to district court's assessment of juror impartiality and stating district court is in best position to assess juror's impartiality). Given these facts, Miller has not shown actual prejudice.

Miller also asserts that where the pretrial publicity is so widespread and prejudicial, such as occurred here, he does not need to show actual prejudice in order to change venue. We disagree. A change in venue may be necessary where no actual prejudice exists but massive pretrial publicity saturates the community. See Sheppard v. Maxwell, 384 U.S. 333, 338-42, 86 S. Ct. 1507, 1510-12 (1966) (stating change in venue necessary where numerous newspaper articles emphasized evidence incriminating defendant, editorials questioned actions of law enforcement officials, articles highlighted defendant's refusal to take lie detector test, and editorials suggested defendant was guilty). Here, after a careful review of the record containing copies of the printed media coverage, we cannot conclude that the pretrial publicity rose to such a level as to prejudice the jury. The media coverage here consisted of factual reports discussing the crime and Miller's past criminal activity and did not contain incriminatory editorials or improper suggestions of Miller's guilt. See State v. Salas, 306 N.W.2d 832, 835 (Minn. 1981) ("Factual news reports are insufficient to establish that pretrial publicity was prejudicial."). Also, the fact that the trial was held approximately nine months after the crimes were committed weighs against Miller's argument. See Fratzke, 354 N.W.2d at 407 (stating seven-month interval between publication and trial mitigated potential prejudicial impact). Thus, the district court did not err in denying the change of venue motions.

II.

Where there is a challenge to the sufficiency 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 (Minn. 1989).

Miller contends that because the state failed to show that he actually took personal property from K.C., he could not be convicted of aggravated robbery. We disagree. Minn. Stat. 609.24 (1996) defines robbery, in part, as taking

personal property from the person or in the presence of another and us[ing] or threaten[ing] 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, all the facts surrounding the event were submitted to and considered by the jury. The jury obviously determined that Miller's use of the gun and physical attack on J.C. satisfied the statute. It is undisputed that Miller threatened to use force against K.C. and J.C. and that K.C. was sitting immediately next to J.C. K.C. thus was exposed to the same threats and danger as J.C. and was in a position to interfere with Miller's intent to rob. Miller in fact demanded property from K.C., but she had nothing of value with her. The statute discusses robbery as taking "property from the person or in the presence of another" and as "the imminent use of force against any person." Minn. Stat. 609.24 (emphasis added). This language indicates that in order to be convicted of robbery, property need not necessarily be taken from the individual, but the individual must be in the presence of, or in the "zone of danger" of, a completed or attempted robbery and must be threatened by the immediate use of force (or be the victim of force). See In re Welfare of D.D.S., 396 N.W.2d 831, 833 (Minn. 1986) (stating taking property that is in victim's possession or control has "the same special potential for physical violence or alarm" as taking property that is on victim's person); State v. Nunn, 399 N.W.2d 193, 197-98 (Minn. App. 1987) (determining all six people threatened by defendant during armed robbery were victims of aggravated robbery even though no property was taken from them), review denied (Minn. Mar. 13, 1987); State v. Dillard, 355 N.W.2d 167, 172 (Minn. App. 1984) (upholding robbery conviction where appellant took money from open till in presence of cashier and customer by overcoming cashier's resistance), review denied (Minn. Oct. 30, 1984). Thus, under the plain language of the statute, Miller committed an aggravated robbery of K.C. If the legislature intended to require the statute to have a more restrictive scope, the statute must reflect this by not including references to "in the presence of another" and "any person." We note that the advisory committee comment states that the statutory language "contemplates a case where the property is not on the person but near him." See Minn. Stat. Ann. 609.24 advisory comm. cmt. (West 1987). However, this language does not obviate our construction of the language.

Moreover, we find support for the conviction in that K.C., as the daughter of J.C., had an inchoate right of possession in her mother's property that was superior to that of Miller. See Miller v. Monsen, 228 Minn. 400, 401-02, 37 N.W.2d 543, 544-45 (1949) (describing family as self-contained unit). In other words, K.C. had either the best and first right of possession, or constructive possession, of her mother's property at the time the property left J.C.'s control or K.C. had joint possession over her mother's property in this instance. See Henry Campbell Black et al., Black's Law Dictionary 314, 839 (6th ed. 1990) (describing constructive possession as existing where one may exercise dominion or control over property and stating joint possession exists where two or more people have actual or constructive possession). Because the robbery statute does not indicate that actual ownership of the stolen property is required, K.C.'s constructive possession of her mother's property is sufficient to constitute the taking of property "in the presence of another." Thus, Miller's conviction on the aggravated robbery charge is proper.

Miller also challenges his conviction of attempted aggravated robbery of J.W. because the state did not show that he displayed a weapon to her or demanded property from her. We disagree. Minn. Stat. 609.17, subd. 1 (1996), states that one who

does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.

The record shows that Miller (1) intentionally rear-ended J.C.'s car and J.W.'s car, each of which was occupied by a mother and a daughter; (2) approached and demanded property from the daughters after the mothers left the cars to inspect the damage; (3) displayed his gun and engaged in physical violence during both events; and (4) robbed J.C. when she was under Miller's control. Because of the striking similarities of the two events, and viewed in the light most favorable to the conviction, we conclude that the jury could have properly determined that Miller engaged in a substantial step toward committing an aggravated robbery of J.W. Thus, Miller's conviction of attempted aggravated robbery of J.W. is supported by sufficient evidence.

III.

"[I]f a person's conduct constitutes more than one offense * * *, the person may be punished for only one of the offenses * * *." Minn. Stat. 609.035, subd. 1 (Supp. 1997).

The determination of whether multiple offenses are part of a single behavioral act under section 609.035 is not a mechanical test, but it involves an examination of all the facts and circumstances.

State v. Gould, 562 N.W.2d 518, 521 (Minn. 1997).

Under section 609.035, the factors to be considered in determining whether multiple offenses constitute a single behavioral act are time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.

Id. "Where the parties do not dispute the material facts, a reviewing court need not defer to the district court's application of the law." State v. Jeter, 558 N.W.2d 505, 506 (Minn. App. 1997).

Miller contends that the district court erred in sentencing him on two counts of criminal sexual conduct because the offenses arose out of the same behavioral incident. Miller relies on State v. Herberg, 324 N.W.2d 346, 349 (Minn. 1982), to assert that his sole motivation in committing the offenses was to satisfy his sexual needs. We disagree. In Herberg, the supreme court determined that the defendant's act of sexual penetration before moving the victim to avoid detection and commission of a second act of penetration constituted a single behavioral incident. 324 N.W.2d at 349. Moreover, in State v. Spears, 560 N.W.2d 723, 727 (Minn.App. 1997), review denied (Minn. May 28, 1997), this court determined that where "[a]ll three offenses took place in [the defendant's] parked car within a 45-minute period, and were committed against a single victim," the defendant was engaged in a single behavioral incident. In contrast, Miller did not move S.M. to avoid detection after the first sexual offense incident, rather, he committed three robberies before committing the second sexual offense. Because of the intervening aggravated robberies, there was not a single criminal objective nor can it be said that the two sexual assaults were in a "continuous and uninterrupted course of conduct." See State v. Johnson, 273 Minn. 394, 405 141 N.W.2d 517, 525 (1966) (stating multiple acts may constitute a single behavioral incident if "they occur at substantially the same time and place and arise out of a continuous and uninterrupted course of conduct"). Thus, the district court correctly sentenced Miller for two counts of criminal sexual conduct.

IV.

In determining whether to depart durationally, the [district] court looks to see whether a defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question.

State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996). The district court's decision to depart from sentencing guidelines is reviewed on an abuse of discretion standard. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).

A consecutive sentence may not be imposed if the criminality of the defendant's conduct is unfairly exaggerated. State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). A consecutive sentence may be imposed to recognize the severity of each offense if there is more than one victim. Id. "Whether consecutive sentences should be imposed is a question within the discretion of the district court." Id.

Miller argues that the district court unduly exaggerated the criminality of his conduct by imposing three concurrent and five consecutive sentences. Further, Miller asserts that the district court relied on impermissible factors in its sentencing departure. We disagree. Miller correctly asserts that his use of a gun, which upgraded his simple robbery charges to aggravated robbery charges, cannot be used as an aggravating factor. See State v. VanZee, 547 N.W.2d 387, 392 (Minn. App. 1996) ("It is improper to consider an element of the crime as an aggravating factor supporting departure at sentencing."), review denied (Minn. July 10, 1996). The district court identified many legitimate grounds, however, to justify its sentencing departure. Among those reasons were Miller's (1) multiple penetrations, beatings, degradation, repeated threats with a gun, and willful abandonment of S.M.; (2) particular physical cruelty and repeated threats toward J.F. with a gun; (3) repeated threats toward J.C. and J.W. with a gun; and (4) his repeated striking of E.W.'s face with a gun. See Minn. Sent. Guidelines II.D.2.b.(2) (listing "particular cruelty" as an aggravating factor that may justify departure); Smith, 541 N.W.2d at 590 (stating "holding a gun to the victim's head is not enough to justify a departure," but it may be considered in determining whether offense was committed in more serious manner); id. (stating "gratuitous infliction of pain will qualify as 'particular cruelty'" when gun used in robbery); State v. Rodriguez, 505 N.W.2d 373, 375, 377 (Minn. App. 1993) (noting particular cruelty of abandoning 88-year-old immobile victim to die in a van in March), review denied (Minn. Oct. 19, 1993); State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992) ("The trial court may consider taunts, threats and degradation of the victim as aggravating circumstances justifying upward departure."), review denied (Minn. Apr. 13, 1992); State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991) ("Multiple types of penetrations may also be considered as aggravating factors"), review denied (Minn. Jan. 16, 1992). The district court also properly noted as additional aggravating factors the fact that J.F. suffers from psychological trauma and that K.C. and E.W. were particularly vulnerable due to their young ages, 13 and 16, respectively. See State v. Cermak, 344 N.W.2d 833, 839 (Minn. 1984) (stating age of victim can be considered with other factors to determine if conduct more serious than "typical" conduct); Allen, 482 N.W.2d at 232 (stating age of 17-year-old sexual assault victim properly considered as aggravating factor); Allen, 482 N.W.2d at 233 ("Psychological and emotional injury may justify upward departure.").

Furthermore, the district court's use of Miller's uncontested status as a career offender to justify departure was proper. See Minn. Stat. 609.152, subd. 3 (1996) (allowing departure if district court determines that defendant is career offender); State v. Gorman, 546 N.W.2d 5, 10 n.4 (Minn. 1996) (stating sentencing departure based on aggravating factors need not be reviewed where departure is properly justified on grounds that defendant was career offender). Thus, the district court did not abuse its discretion in departing from the sentencing guidelines.

Similarly, the record supports the district court's imposition of consecutive sentences. The record indicates that Miller committed separate offenses against multiple victims; at least two of the offenses were particularly violent; and Miller's conduct had, and has, a severe, immediate, and long-term impact on the lives of the victims and of their families. Given the egregiousness of Miller's offenses and the severity of impact of the offenses, the imposition of consecutive sentence does not exaggerate Miller's criminal conduct.

V.

Miller argues that the district court should not have allowed people who were not victims to testify at the sentencing hearing. We disagree. Direct victims of crimes have the right to submit an impact statement at sentencing. Minn. Stat. 611A.038(a) (Supp. 1997). This statute confers on victims a right to testify at sentencing, but it does not prohibit non-victims from making statements at sentencing. See Minn. R. Crim. P. 27.03, subd. 1(F) ("The court shall also permit the record to be supplemented by such testimony as it deems relevant and material to the issues."). Here, in addition to three victims, three relatives of a victim and a crime victims' advocate made statements at sentencing. Given the relatively short duration of the sentencing hearing and the relevancy of the statements, the district court did not abuse its discretion in allowing non-victims to testify.

Affirmed.