may not be cited except as provided by
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Steven Eugene Daniels,
Filed July 20, 1999
Affirmed in Part, Reversed in Part, and Remanded
Hennepin County District Court
File No. 97103672
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Davies, Presiding Judge, Randall, Judge, and Anderson, Judge.
Appellant challenges his convictions for simple and aggravated robbery, arguing that there was insufficient evidence to convict. Appellant also argues that the circumstances surrounding the aggravated robbery do not warrant an upward sentencing departure. We affirm the convictions but reverse the aggravated robbery sentence and remand for resentencing on that conviction.
On November 15 and 16, 1997, there occurred in South Minneapolis five purse snatchings in which the assailant, a black male, left the scene in an orange van with a teardrop-shaped side window. The victims were 74-year-old Florence Schroyer, 83-year-old Norma Mitling and her 60-year-old daughter Karen Boyle, 71-year-old Jeanne Ott, and 41-year-old Sharon Eichten.
About three hours after the Eichten robbery, police stopped an orange van driven by Elaine Thunder and occupied by appellant Steven Eugene Daniels and his girlfriend. Property belonging to each of the robbery victims was found in the van. During questioning, Thunder described the robberies and identified appellant as the perpetrator.
Appellant was charged with four counts of simple robbery and one count of first-degree aggravated robbery. The jury found appellant not guilty of the Schroyer robbery but guilty on the four remaining counts. The trial court sentenced appellant to consecutive prison terms of 66 months for the Mitling robbery (a double departure because of victim's age and vulnerability), two terms of 18 months for the Boyle and Ott robberies, and 72 months for the Eichten aggravated robbery (a one-and-a-half-times departure for gratuitous violence and particular cruelty to victim). Appellant's sentences total 174 months (14 years, 6 months). This appeal followed.
I. Sufficiency of Identification Evidence
Appellant argues that the identification evidence does not support his convictions.
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).
Boyle and Eichten testified that their assailant was 25 to 30 years old; Boyle told police at the scene that he had a moustache. Boyle and Ott testified the robber was wearing a green hooded sweatshirt; Eichten stated he was wearing a dark stocking cap. Thunder, the driver of the van, testified that appellant committed the robberies wearing a green hooded sweatshirt and her son's dark stocking cap. The arresting officers testified that appellant had a moustache, was 30 years old, and was wearing a green hooded sweatshirt and holding a leather jacket when they stopped the van. The cellular telephone stolen from Eichten was in the jacket pocket. When the police discovered the phone, appellant said that "the lady" had sold it to him.
Appellant argues that each victim had ample opportunity to observe her assailant, yet none were able to identify him in a photo lineup. But neither Mitling nor Ott saw her assailant's face (Mitling's vision was obstructed by her coat and Ott could not see her assailant because his face was hidden by his sweatshirt hood). Also, the robber approached Mitling, Boyle, and Eichten from behind, and the robberies were, for the most part, snatch and run. During their struggle to keep their purses, Boyle and Eichten had little opportunity to observe the robber's face.
Appellant also argues that Thunder's testimony identifying appellant as the perpetrator of the robberies is not to be believed because she had a motive to lie. But witness credibility "is not an issue for this court to consider on appeal." State v. Garrett, 479 N.W.2d 745, 747 (Minn. App. 1992), review denied (Minn. March 19, 1992). A court reviewing a criminal conviction assumes "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). Thunder did receive use immunity in exchange for her testimony at trial. She understood, however, that the immunity meant her testimony would not be used against her "as long as [she was] telling the truth." Also, both Thunder and the investigating officer testified that the officer made no promises that Thunder would receive special treatment if she testified for the state.
Appellant also argues that the only evidence showing him to be the robber was accomplice testimony, corroborated by weak circumstantial evidence. A conviction cannot be based on the testimony of an accomplice unless the testimony is corroborated by other evidence of the defendant's guilt. Minn. Stat. § 634.04 (1998). For evidence to corroborate the testimony of an accomplice, it "must link or connect the defendant to the crime." State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).
Here, there is sufficient corroborating evidence, including the victims' descriptions of the robber and his clothing and the discovery of Eichten's phone in the pocket of the jacket appellant was holding. Further, the testimony given by each of the victims matched accomplice Thunder's descriptions of the crimes. See State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) ("Corroborating evidence is sufficient if it `restores confidence in the accomplice's testimony, confirming its truth and pointing to the defendant's guilt in some substantial degree.'") (quoting State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988)).
To successfully challenge a conviction based on circumstantial evidence, a convicted defendant must propose an alternative theory that is "supported by the record." State v. Wallace, 558 N.W.2d 469, 473 (Minn. 1997). Appellant offers as an alternative theory that Thunder picked up (and later dropped off) an acquaintance of appellant, who appellant claims may be the person who committed the robberies. But this theory does not explain the stolen goods found in the van, Eichten's phone found in the jacket appellant was holding, and each victim's testimony that her assailant was wearing a green hooded sweatshirt. Appellant's theory is also contradicted by Thunder's direct evidence that she did not see appellant's acquaintance participate in any robberies. The record does not support appellant's alternative theory.
In his pro se brief, appellant raises claims regarding effective assistance of counsel, joinder of offenses, the trial court's conduct, impeachment by prior conviction, and the Miranda warning. We have carefully considered these pro se claims and conclude they lack merit. They give no reason to reject the jury's verdict.
Appellant argues that the circumstances surrounding his conviction for aggravated robbery do not warrant an upward departure in sentencing. The decision to depart from the sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 744, 776 (Minn. 1996).
At sentencing, the trial court sentenced appellant to 72 months for the aggravated robbery of Eichten, a one-and-one-half times departure from the sentencing guidelines. The court based its upward departure on "the particular cruelty that was used, the gratuitous violence."
According to Eichten's testimony, her assailant grabbed her purse and pulled on it, causing Eichten to fall and hit the back of her head on the pavement. Her assailant continued to shake the purse and Eichten as he dragged her towards the van. Eichten testified that she feared she was going to be put in the van. As a result of the robbery, Eichten had sore muscles for one to two weeks and continuing psychological distress.
"Upward departure is within the sentencing court's discretion only if `substantial and compelling' aggravating circumstances are present." State v. Davis, 540 N.W.2d 88, 91 (Minn. App. 1995), review denied (Minn. Jan. 31, 1996). "Substantial and compelling circumstances are those that make the conduct significantly more or less serious than that typically associated with the crime in question." Id. Aggravating circumstances include when "[t]he victim was treated with particular cruelty for which the individual offender should be held responsible." Minn. Sent. Guidelines II.D.2.b.(2). "Gratuitous infliction of pain will qualify as `particular cruelty.'" State v. Smith, 541 N.W.2d 584, 590 (Minn. 1996).
Here, there is no evidence that appellant was particularly cruel in his treatment of Eichten, nor was there gratuitous infliction of pain. We acknowledge that Eichten was injured as a result of the robbery. The injury, however, is reflected in the conviction for aggravated robbery. See Minn. Stat. § 609.245, subd. 1 (1998) (whoever inflicts bodily harm while committing robbery is guilty of first-degree aggravated robbery). The injury cannot also be used as a basis for the departure. See State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982) (inappropriate for sentencing court to base departure on facts used in determining presumptive sentence). Although we do not condone appellant's conduct, it was not significantly more serious than conduct typically associated with aggravated robbery.
The aggravated robbery of Eichten lacks the substantial and compelling circumstances required for an upward departure. We, therefore, reverse the sentence for the aggravated robbery and remand for resentencing on that conviction.
Affirmed in part, reversed in part, and remanded.