This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Kia Diao Walls,


Filed April 20, 1999


Short, Judge

Concurring Specially, Klaphake, Judge

Hennepin County District Court

File No. 98000089

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

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

Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Short, Judge.


SHORT, Judge

On April 2, 1998, a jury convicted Kia Diao Walls of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (1998). The trial court imposed the presumptive sentence of 58 months. On appeal from conviction and sentencing, Walls argues the trial court abused its discretion in: (1) failing to instruct the jury on the lesser-included offense of simple robbery; (2) instructing the jury that it will not reread testimony; and (3) refusing to grant a downward sentencing departure. We affirm.



Walls argues the trial court abused its discretion in denying his request for an instruction on the lesser-included offense of simple robbery. See Minn. Stat. § 609.24 (1998) (defining crime of simple robbery). But a trial court is allowed considerable latitude in determining the propriety of a specific jury instruction. State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). Lesser-included offense instructions should be given only if there is evidence that justifies a conviction for the lesser offense and an acquittal on the greater offense. State v. Daniels, 361 N.W.2d 819, 832 (Minn. 1985); State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975).

The record shows: (1) the victim testified Walls approached her car after she pulled into Hennepin County Medical Center's parking lot, told her that he had a gun and demanded money; (2) the victim also testified Walls injured her arm and sprained her elbow as he yanked open her car door, and shoved her as he grabbed her purse from the passenger seat; and (3) Walls contradicted the victim by testifying he spotted her while waiting for the bus and simply snatched her purse from her car seat when she refused to give him money.

These facts do not support a conviction for simple robbery and, at the same time, a finding of not guilty of aggravated robbery. See generally Lienweber, 303 Minn. at 422, 228 N.W.2d at 125-26. Rather, the evidence warrants either an aggravated robbery or a theft conviction. See Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (noting trial court must give instruction only where it is warranted by evidence). Thus, the trial court properly addressed each side's theory of the case in its jury instructions. Minn. Stat. §§ 609.245, subd. 1 (defining first-degree aggravated robbery), .52, subd. 2 (1998) (defining theft); see State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977) (noting party entitled to instruction on his/her theory of case where it is supported by evidence). Because the trial court was not obligated to speculate as to what other crimes Walls may have committed that were not specifically supported by the testimony of either party, it did not abuse its discretion in refusing to instruct the jury on simple robbery.


Walls also argues the trial court abused its discretion in instructing the jury that it would not reread testimony. But the trial court has broad discretion over whether it will reread requested parts of testimony to the jury. Minn. R. Crim. P. 26.03, subd. 19(2); State v. Lane, 582 N.W.2d 256, 259 (Minn. 1998); see also State v. Rean, 421 N.W.2d 303, 306 (Minn. 1988) (citing cases that note trial court's broad discretion in dealing with jury requests to review evidence).

Although the trial court told the jury it "won't have an opportunity" to hear or see testimony again, it also stated rereading testimony "is just about impossible," and "it will probably be the last time" the jury hears testimony. Given these facts, the trial court did not apply a blanket rule against granting jury requests. Cf. Rean, 421 N.W.2d at 306 (noting trial court's statement "I do not reread * * * testimony" in response to jury's specific request may have served as blanket refusal).

Moreover, the jury deliberated for one and one-half days and never requested the trial court reread any testimony. Under these circumstances, the trial court did not abuse its discretion by indicating it would be reluctant to reread testimony. Cf. State v. Spaulding, 296 N.W.2d 870, 877-78 (Minn. 1980) (reversing trial court's decision because trial court refused to reread testimony after jury deliberated for more than 15 hours and reported to be deadlocked in disagreement over defendant's testimony).


Walls finally argues the trial court abused its discretion in not granting a downward departure. But the decision to depart from sentencing guidelines also rests within the trial court's discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). Only in a rare case will we reverse a trial court's imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see also Minn. Sent. Guidelines II.D. (requiring trial court to provide written reasons for sentence only when departing from presumptive sentence).

The record demonstrates: (1) Walls demanded money from the victim by telling her that he had a gun; (2) Walls used force to push the victim into her car seat and reach her purse; (3) the victim suffered injuries to her arm and a sprained elbow from Walls's conduct; and (4) Walls has a history of drug use, testified to using alcohol and crack cocaine the morning of his alleged offense, and has been unsuccessful in past alcohol and drug treatment programs. These facts support the trial court's conclusion that Walls was unamenable to probation and its imposition of the presumptive sentence for aggravated robbery. See State v. Champion, 413 N.W.2d 161, 164 (Minn. App. 1987) (affirming denial of downward departure in part because trial court doubted defendant's sincerity in seeking treatment); cf. State v. Kimmons, 502 N.W.2d 391, 396-97 (Minn. App. 1993) (affirming trial court's imposition of double upward durational departure from presumptive simple robbery sentence where defendant grabbed elderly woman from behind, and inflicted minor injuries while reaching around woman's neck for her purse), review denied (Minn. Aug. 16, 1993). Under these circumstances, the trial court did not abuse its discretion in refusing to grant a downward departure.


KLAPHAKE, Judge (concurring specially)

I concur in the result, but write separately to discuss the trial court's error in foreclosing any jury request for a rereading of testimony.

As the majority notes, a trial court has broad discretion in deciding whether to grant a jury's request to reread testimony. Minn. R. Crim. P. 26.03, subd. 19(2). But, along with the equivocal statements cited by the majority, the trial court here unequivocally told the juror no testimony would be reread. Thus, the court effectively refused to exercise any discretion. This has been held to be grounds for reversal. See State v. Spaulding, 296 N.W.2d 870, 877-78 (Minn. 1980) (holding court's instruction to jury before deliberation, that no testimony would be reread was reversible error); see generally State v. Favre, 428 N.W.2d 828, 832 (Minn. App. 1988) (noting in general trial court's refusal to exercise discretion is an abuse of discretion); cf. State v. Lane, 582 N.W.2d 256, 260 (Minn. 1998) (affirming despite refusal of jury request to reread testimony where court did not say it would reject any request); State v. Rean, 421 N.W.2d 303, 306 (Minn. 1988) (disapproving trial court's statement that suggested it had applied "improperly" a "blanket rule" against granting any jury requests to reread testimony).

I would not rely on the jury's failure to request a rereading of testimony to find the error harmless because the court's instruction effectively prevented any such request. See generally State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998) (stating general assumption that the jury follows a court's instructions). It is inherently prejudicial to foreclose a jury from exercising its right to request a rereading of testimony. I agree with the majority's decision to affirm in this case, however, because the evidence that appellant committed aggravated robbery is very strong. See Rean, 421 N.W.2d at 307 (affirming despite refusal of request to reread testimony where evidence of guilt was "very strong").