may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Angel Roberto Cavazos-Martinez,
Filed March 23, 1999
Kandiyohi County District Court
File No. K0971204
Michael A. Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Boyd A. Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Angel Roberto Cavazos-Martinez, No. 196475, MCF-St. Cloud, Box B, St. Cloud, MN 56302 (appellant pro se)
Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.
Appellant challenges his conviction of second-degree assault, contending that the evidence was insufficient to prove beyond a reasonable doubt that he possessed a gun or other dangerous weapon. Appellant also contends that reversal for prejudice is appropriate because jury members knew some of the victims. We affirm.
Appellant Angel Roberto Cavazos-Martinez was charged with second-degree assault in violation of Minn. Stat. § 609.222, subd. 1(1996) (assault with a dangerous weapon-firearm); three counts of fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 1(2) (1996); and terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1996), after an incident where appellant confronted several teenagers who had "toilet-papered" a house. Following a two-day trial, the jury convicted appellant on all charges.
C.S., a victim, testified at the trial. According to C.S., while he and his friends were walking to their cars to leave a home that they had "toilet-papered," a car pulled up, and appellant got out yelling at C.S. and his friends. Appellant threatened to kill C.S. and his friends. Appellant stated to the driver, "Toss me the keys so I can get in the trunk to get the gun." C.S. saw appellant pull out a gun and throw a purple rag over the top of it. He swung it around a few times saying, "I'm going to kill you." Appellant pointed the gun right in C.S.'s face and C.S. saw the barrel, describing that it was big enough to at least stick a pencil in the barrel. There were lights on the street, and C.S. could see the gun quite well. When C.S. started walking backwards, stating that he was going to leave, appellant stuck the gun in C.S.'s chest, jabbing it in and stating, "I'm going to kill you." Appellant swung and hit C.S. in the shoulder. C.S. got in the car with his friends and then he saw appellant hit J.L.N., who also got in the car, and C.S. and his friends drove away. C.S. stated that there was no doubt in his mind that what he saw was a gun.
J.O. testified that he heard appellant say that he wanted to get the keys to his trunk to get his gun. J.O. saw appellant go into the trunk and come out with a cloth over his hand, but did not see a gun.
K.P. also testified that she heard appellant ask for a gun and the keys to the trunk. She saw appellant go in the trunk and pull out something that looked like a gun with something over it. When asked if it could have been appellant's finger under the cloth, she replied, "No," and said it was bigger and more solid.
J.L.N. testified that there was something in appellant's hand that looked as if it could have been a gun and that while J.L.N. was getting into the car, appellant hit him in the back.
H.G. testified that she saw appellant go to his car and pull out what she thought to be a gun. Appellant had a blanket over his hand and yelled at all of them. She did not see a gun, but the way that appellant was holding it, it appeared that he definitely had something underneath the blanket.
S.O. testified that he saw what looked like a gun and that the blanket was not drooping in the middle and, if there had been nothing under it, it would have drooped.
Appellant testified that he wanted the group to think that he had "a gun or something" with him. He went to the trunk and got the blanket out, but did not use a gun. He wanted them to think there was a gun so they would leave, because he thought that they were toilet-papering his friend's house. He also testified that the reason he grabbed the blanket actually was to go to J.T.'s car to break the window.
A.R. and J.D. both testified that they were with appellant that evening but that they did not see a gun.
Appellant argues that the evidence was insufficient to prove the charge of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1996). The statute requires that the assault be done "with a dangerous weapon." Id. To support his argument, appellant contends (1) that he only pretended to have a gun; (2) that the only evidence that he had a gun was C.S.'s testimony; (3) that this testimony was "weak and inconclusive" because, even though C.S. claimed actually to have seen a weapon, he could not describe it other than to say that the barrel was large enough to insert a pencil; and (4) that other than C.S., no one present that night saw a gun or other weapon in appellant's hand.
C.S. testified that there was no doubt in his mind that he saw a gun, which appellant placed inches from C.S.'s face and then jabbed into C.S.'s chest. C.S. also testified that there were lights on the street and he could see the gun quite well. At least three witnesses testified that they heard appellant state that he wanted the keys to the trunk so that he could get a gun. Although no other witnesses saw the gun, numerous witnesses testified that appellant definitely had something in his hand, under the purple cloth. There is sufficient evidence in the record to support the jury's conclusion that appellant had a gun or dangerous weapon.
In his pro se brief, appellant argues that, because jury members knew some of the victims, his constitutional rights were violated. Appellant refers to statements that were made by jurors during voir dire; but the record does not include a transcript of voir dire. In his written request for transcripts, appellant's counsel stated that the order for transcripts "does not include jury voir dire." It is appellant's duty to order a transcript "of those parts of the proceedings not already part of the record which are deemed necessary for inclusion in the record." Minn. R. Civ. App. 110.02, subd. 1(a). Without a transcript of voir dire, it is not possible for this court to review appellant's argument. See State v. Axford, 417 N.W.2d 88, 93-94 (Minn. 1987) (emphasizing requirement that appellate court review issue based only on a complete transcript).