STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Omar Raoof Azeez,
Filed December 30, 1999
Affirmed as modified
Hennepin County District Court
File No. 97036405
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent).
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
Appellant Omar Raoof Azeez was convicted and sentenced on one count of first-degree criminal sexual conduct, two counts of kidnapping, one count of first-degree assault, and one count of second-degree assault. Azeez raises several challenges to the convictions and sentences. We affirm as modified.
M.M. was taken to a hospital where she received stitches for a six-inch cut across her neck, a stab wound to her leg, and a cut to her ear and the adjacent facial area. She also had ligature marks and bruises on her hands and wrists that were consistent with being tied up tightly, bruise marks on her neck that were consistent with being manually choked, cuts on her hands that were consistent with defensive wounds, and injuries that were consistent with forcible sexual penetration.
Azeez was arrested and charged with attempted first-degree murder, first-degree criminal sexual conduct, two counts of kidnapping, and two counts of second-degree assault. The complaint was later amended to add attempted second-degree murder and first-degree assault charges.
M.M. testified at trial as follows:
On the evening of April 27, 1997, she picked up Azeez, her former boyfriend, at his parents' house in Minneapolis and took him for a drive in her new truck. At some point during the drive, Azeez asked M.M. if she was willing to resume their romantic relationship and asked her to park the truck so that they could talk. When M.M. said that she just wanted to be friends, Azeez told her that he would leave her alone if she would have sex with him or suck his penis. M.M. agreed to masturbate him and allowed him to put his mouth on her breasts.
After a while, Azeez told M.M. to stop touching his penis and pulled out a knife. M.M. grabbed the knife, and a struggle ensued, which resulted in M.M. sustaining knife cuts on her hand and ear and a stab wound on her thigh. While M.M. bled, Azeez demanded at knifepoint that she take off her clothes and perform oral sex on him. He then cut off her bra with the knife and ordered her to get on top of him and engage in sex. He told her to "pretend like [she] was enjoying it."
Azeez next told M.M. that he "needed more room to work" and made her get out of the truck naked and run with him down an alley. When he found a dark spot between two garages, he held a knife to M.M.'s throat and forced her to get on her knees and perform oral sex until he ejaculated in her mouth. He told her that he would kill her if she ran or screamed. He then tied M.M.'s hands together with a shoelace, draped a jacket over her, and led her back to the truck.
When Azeez was unable to operate the truck's manual transmission, he untied M.M.'s hands and directed her to drive eastbound on I-94 into Wisconsin. At about 11 p.m., Azeez directed M.M. to pull into a parking lot somewhere in Wisconsin and forced her to engage in oral and vaginal sex. He then bound M.M.'s hands with the shoelace so that she could not flee while he was sleeping. He told M.M. that he had a gun and not to run or scream or he would kill her. He also told her that he "wouldn't mind blowing [her] away if the cops pulled [them] over or anything."
On April 28, 1997, at about 4:30 a.m., Azeez woke M.M. and again forced her to perform oral sex. Afterward, he allowed her to get dressed and instructed her to drive further into Wisconsin. About a half-hour later, M.M. told appellant that he could get out at a gas station, but he refused to leave the truck and said he was going to return with her to Minnesota.
When they arrived back in the Twin Cities, M.M. drove to Riverside Hospital, where her mother worked, and told Azeez that she was going to go inside and tell her mother that she was okay. Azeez took out his knife, held it to M.M.'s throat and told her that he would kill her if she tried to get out of the truck. They left the parking lot and drove around Minneapolis. At one point, they stopped at a gas station to refuel the truck. M.M. did not attempt to flee when Azeez left to pay for the gas because she did not have the keys to the truck or her cell phone.
After leaving the gas station, Azeez told M.M. to pull over and stop at a park. M.M. stated that at this point she "was thinking oh, my God, it's going to happen again." Azeez forced M.M. out of the truck and took her into a satellite bathroom. She begged him not to make her perform oral sex, but Azeez forced her to do so and to engage in vaginal intercourse.
Azeez returned with M.M. to the truck and told her to drive to his cousin's apartment in Brooklyn Center. On the way, Azeez called his cousin and told him that he had done something real bad. When they arrived, the cousin was waiting for them and asked Azeez what he had done. M.M. told the cousin that Azeez had cut her with a knife and raped her. The cousin went into his apartment, returned with a knife, and challenged Azeez to a fight. While Azeez talked his cousin into going back into the apartment, M.M. was able to get out of the truck. But Azeez convinced her to get back in by telling her that he would drive away in her new truck without her.
When M.M. got back into the truck, Azeez tied her hands up tightly. M.M. told Azeez that her hands were tied too tight. He said "Okay" and tied them even tighter. Azeez forced M.M. to lay her head down on his lap. Azeez told M.M. that his life was screwed up and that he would rather be killed than lose his freedom. He then cut M.M.'s throat with the knife. M.M. sat up, saw that her throat was bleeding, and knew that she had to do something or she was going to die.
M.M. was able to escape from the truck and started running toward the apartment building. Azeez caught M.M. and choked her with a strangle hold. She passed out and woke up to find herself being assisted by two people who had witnessed Azeez assaulting her. The police and an ambulance arrived shortly after.
The jury acquitted Azeez of attempted first-degree murder and attempted second-degree murder, and found him guilty of two counts of kidnapping and one count each of first-degree criminal sexual conduct, first-degree assault, second-degree assault, and fifth-degree assault.
The trial court sentenced appellant to (1) 360 months (30 years) for first-degree criminal sexual conduct; (2) 108 months (9 years) for kidnapping to facilitate the commission of a felony; (3) 134 months (11 years, 2 months) for kidnapping to commit great bodily harm or to terrorize the victim; (4) 161 months (13 years, 5 months) for first-degree assault; and (5) 39 months (3 years, 3 months) for second-degree assault. The last four sentences were to run concurrently to each other, and consecutively to the sentence for first-degree criminal sexual conduct. Thus, appellants total sentence is 521 months (43 years, 5 months), to be served consecutively to an unrelated 98-month sentence for first-degree assault, which had been executed following appellant's arrest for kidnapping and assaulting M.M. These sentences were all departures from the presumptive guidelines sentences.
Azeez was convicted of kidnapping to facilitate the commission of a felony in violation of Minn. Stat. § 609.25, subd. 1(2) (1996), and of kidnapping to commit great bodily harm or to terrorize the victim in violation of Minn. Stat. § 609.25, subd. 1(3) (1996). He argues that Minn. Stat. § 609.04, subd. 1 (1996), bars the multiple kidnapping convictions, and, therefore, the conviction and sentence for kidnapping to facilitate the commission of a felony should be vacated because it was the kidnapping offense with the lower severity level under the sentencing guidelines. We agree.
Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following:
(1) A lesser degree of the same crime; or
(2) An attempt to commit the crime charged; or
(3) An attempt to commit a lesser degree of the same crime; or
(4) A crime necessarily proved if the crime charged were proved[.]
Minn. Stat. § 609.04, subd. 1.
The state cannot avoid the application of the principles expressed in Minn. Stat. § 609.04 (1996) by fashioning separate counts. State v. Koonsman, 281 N.W.2d 487, 489 (Minn. 1979). Minn. Stat. § 609.04 bars the prosecutor from exaggerating the criminality of the defendant's conduct by obtaining two convictions based on the same offense simply because the defendant's single act violated two different provisions of the same statute. See State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985) (when a defendant is convicted of multiple crimes in violation of different sections of the same statute, only one conviction may be adjudicated when the acts were committed during a single behavioral incident).
When two convictions are based on the same criminal act, application of section 609.04 is an issue of law. See State v. Bowser, 307 N.W.2d 778, 779 (Minn. 1981) (applying section 609.04 and vacating sentence as a matter of law). Accordingly, this court's review of this issue is de novo. See State v. Martinson, 581 N.W.2d 846, 849 (Minn. 1998) (when the facts are undisputed and the issue presents a question of law, appellate court exercises de novo review).
The state contends that although Minn. Stat. § 609.04 precludes multiple convictions based upon the same acts, neither kidnapping conviction should be vacated because the evidence establishes two separate kidnappings: one on April 27, 1997, to facilitate the commission of criminal sexual assault, and another on April 28, 1997, to terrorize M.M. or to cause her great bodily harm. We disagree.
Minn. Stat. § 609.25, subd. 1, states:
Whoever, for any of the following purposes, confines or removes from one place to another, any person without the person's consent * * * is guilty of kidnapping * * * :
(1) To hold for ransom or reward for release, or as shield or hostage; or
(2) To facilitate commission of any felony or flight thereafter; or
(3) To commit great bodily harm or to terrorize the victim or another; or
(4) To hold in involuntary servitude.
The two kidnapping convictions were based on purposes (2) and (3) in the statute. But there was no meaningful interruption of Azeez's confinement of M.M. From the moment he began his initial assault until he left M.M. lying unconscious and fled, Azeez confined M.M. without her consent. We see no basis for concluding that this continuous confinement constituted two separate kidnappings. The fact that Azeez's purpose for kidnapping M.M. changed during the kidnapping does not convert his act of kidnapping into two separate acts. We, therefore, vacate the conviction and sentence for kidnapping to facilitate the commission of a felony in violation of Minn. Stat. § 609.25, subd. 1(2). See State v. Patch, 329 N.W.2d 833, 837 (Minn. 1983) (one of two kidnapping convictions vacated where single act violated two different provisions of same statute).
The jury found Azeez guilty of first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (1996) (assault resulting in great bodily harm), and second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1996) (assault with a dangerous weapon). He argues that because the jury instructions did not distinguish the counts so that the trial court could determine that the jury's second-degree assault verdict was not based on the same conduct as its first-degree assault verdict, the conviction for second-degree assault should be vacated pursuant to Minn. Stat. § 609.04, subd.1.
"Under section 609.04 a defendant cannot be convicted twice for the same offense against the same victim on the basis of the same act." State v. Goodridge, 352 N.W.2d 384, 389 (Minn. 1984). However, there was ample evidence of distinct acts that constituted second-degree assault (assault with a dangerous weapon) without constituting first-degree assault (assault causing great bodily harm). Not every assault with the knife resulted in bodily harm. Consequently, Minn. Stat. § 609.04 does not apply, and the conviction for second-degree assault need not be vacated pursuant to Minn. Stat. § 609.04, subd.1. Although the broad jury instruction might have prompted the jury to rely on the same behavioral incident to find Azeez guilty on both assault charges, Azeez waived any claim of error based on the jury instructions by failing to object to the instructions or request additional or alternative instructions. See State v. Malley, 285 N.W.2d 469, 473 (Minn. 1979) (failure to submit lesser included offense instruction to jury was not error where defendant implicitly waived right to instruction by failing to request instruction).
II. Minn. Stat. § 609.035 (1996)
Azeez argues that because his first-degree assault and first-degree criminal sexual conduct convictions arose from the same behavioral incident, the trial court erred by sentencing him on both convictions, and his sentence for first-degree assault should be vacated.
Minn. Stat. § 609.035, subd. 1 (1996), provides:
Except as provided in subdivison 2, subdivision 3, and in sections 609.251, 609.585, 609.21, subdivisions 3 and 4, 609.2691, 609.486, 609.494, and 609.856, if a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.
Whether offenses were part of a single behavioral incident is a fact determination, and the trial court's decision will not be reversed on appeal unless clearly erroneous. State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).
[T]o determine if the offenses arose from a single behavioral incident, we generally consider the factors of time and place and whether a defendant is motivated by a single criminal objective in committing two intentional crimes. For example, when arson is the means by which the defendant commits a murder, the defendant may not be sentenced both for the murder and for the arson, because the time and place of the offenses coincide and because the defendant is motivated by an effort to obtain a single criminal objective.
State v. Bookwalter, 541 N.W.2d 290, 295 (Minn. 1995).
Azeez argues that although, under Bookwalter, the first-degree assault and the first-degree criminal sexual conduct offenses might arguably have been so separated in time and place that they were not part of a single behavioral incident, they cannot be treated as separate incidents because the state did not rely solely on injuries M.M. suffered during the final assault to prove the first-degree assault charge. He contends that the first-degree assault charge referred to acts committed on both April 27 and 28 and that the jury instruction for first-degree assault did not instruct the jury to consider only behavior that occurred outside the apartment building on April 28. He also contends that to prove great bodily harm, the state relied on numbness to M.M.'s hands caused by tying her wrists on the first day and the cut on her face that occurred the first day.
Azeez was convicted of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (1996) (actor causes personal injury to complainant and uses force or coercion to accomplish penetration). The record demonstrates that during the night of April 27, 1997, Azeez used a knife to force M.M. to submit to sexual penetration, and M.M. was cut on the ear and stabbed in the leg. Thus, all of the elements of first-degree criminal sexual conduct occurred on the night of April 27, 1997. Azeez was also convicted of first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (actor assaults another and inflicts great bodily harm). The record demonstrates that on April 28, 1997, Azeez tied M.M.'s hands, inflicted a six-inch-long cut across her throat, and choked her to unconsciousness. Thus, all of the elements of first-degree assault occurred on April 28, 1997.
Although the prosecutor did not carefully premise the first-degree assault charge only on injuries M.M. suffered during the final segment of conduct, those injuries were the most serious injuries she suffered, and no evidence of other injuries was necessary to prove first-degree assault. Also, because no sexual penetration occurred during the final act of assault, that segment of Azeez's conduct was not a single behavioral incident during which both first-degree criminal sexual conduct and first-degree assault occurred.
Because there was no unity of time, place and criminal objective between the conduct required to prove all of the elements of first-degree criminal sexual conduct and the conduct required to prove first-degree assault, the trial court's factual determination for sentencing purposes that the offenses were not part of a single behavioral incident was not clearly erroneous.
III. Upward Departure from Sentencing Guidelines
Azeez argues that the sentencing worksheets prepared before sentencing were erroneous because they did not take into account the correct number of sentences that could be imposed pursuant to Minn. Stat. §§ 609.035, .04 (1996). We have already indicated that Azeez should have been sentenced for only one kidnapping offense and that the other kidnapping sentence should be vacated. Because we are vacating one kidnapping conviction, it is of no consequence that the sentencing worksheets address both kidnapping convictions.
Azeez also contends that the worksheets indicate that the Hernandez rule was misapplied when calculating the criminal history scores to be used for sentencing on the current offenses. The presumptive sentences on the worksheets appear to have been calculated using the Hernandez method of adding a criminal history point as each successive current offense was sentenced. State v. Hernandez, 311 N.W.2d 478 (Minn. 1981). Azeez contends that this was incorrect because the multiple sentences were imposed pursuant to Minn. Stat. § 609.251 (1996) (permitting conviction and punishment for kidnapping and for any other crime committed during kidnapping) and Minn. Sent. Guidelines cmt. II.B.102 requires:
When multiple current convictions arise from a single course of conduct and multiple sentences are imposed on the same day pursuant to Minn. Stats. § 609.585 or 609.251, the conviction and sentence for the "earlier" offense should not increase the criminal history score for the "later" offense.
Even if we assume that the presumptive sentences indicated on the sentencing worksheets were not based on the correct criminal history scores, the errors were inconsequential because the trial court did not impose the presumptive sentences. During the sentencing hearing, the prosecutor described each of the presumptive sentences indicated on the worksheets as an upward departure and stated the lengths of the departures based on a presumptive sentence calculated using a zero criminal history score. The trial court stated that each of the sentences imposed was a departure and adopted the factors supporting the departures that were set out in the prosecutor's memorandum.
The trial court imposed durational departures and also ordered that the current sentence for first-degree criminal sexual conduct run consecutively to a prior sentence for first-degree assault and that the remaining four sentences run concurrently to one another and consecutively to the sentence for first-degree criminal sexual conduct. The Sentencing Guidelines recognize circumstances where consecutive sentences are permissive and may be imposed without citing reasons for a sentencing departure:
1. A current felony conviction for a crime against a person may be sentenced consecutively to a prior felony sentence for a crime against a person which has not expired or been discharged; or
2. Multiple current felony convictions for crimes against persons may be sentenced consecutively to each other.
Minn. Sent. Guidelines II.F.
Azeez concedes that under these provisions, imposing the current sentences to run consecutively to the prior first-degree assault sentence was not a departure and that imposing a current sentence to run consecutively to the first-degree criminal sexual conduct sentence was not a departure. But he argues that for the sentences to be permissive consecutive sentences, each sentence must be the presumptive sentence determined by using a zero criminal history score. We agree.
It is permissive for multiple current felony convictions against persons to be sentenced consecutively to each other when the presumptive disposition for these offenses is commitment to the Commissioner of Corrections as determined under the procedures outlined in Section II.C. Presumptive Sentence. Consecutive sentencing is permissive under these circumstances even when the offenses involve a single victim involving a single course of conduct. However, consecutive sentencing is not permissive under these circumstances when the court has given an upward durational departure on any of the current offenses. The Commission believes that to give both an upward durational departure and a consecutive sentence when the circumstances involve one victim and a single course of conduct can result in disproportional sentencing unless additional aggravating factors exist to justify the consecutive sentence.
Minn. Sent. Guidelines cmt. II.F.04 (emphasis in original).
Because the trial court imposed upward durational departures and made four of the current sentences consecutive to the fifth sentence, there must be aggravating factors to support the durational departures and additional aggravating factors to justify the consecutive sentences. See Butterfield, 555 N.W.2d at 532 (district court may depart durationally and with respect to consecutive service on sentences imposed for kidnapping and offense committed during the kidnapping when severe aggravating circumstances are present that would justify imposition of sentence longer than double the presumptive term).
Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the presumptive sentence. State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). But when the aggravating circumstances are severe, this limit does not apply. State v. Stumm, 312 N.W.2d 248, 249 (Minn. 1981). Whether severe aggravating circumstances are present is a decision that must be based upon "our collective, collegial experience in reviewing a large number of criminal appeals from all the judicial districts." State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982).
When sentencing for a kidnapping, the court may consider what happened during the kidnapping, but it may not rely on the elements of an offense committed during the kidnapping to depart on the kidnapping sentence when the defendant is also sentenced for that offense. The facts of this case are remarkably similar to the facts in Butterfield, in which this court concluded that there were not severe aggravating circumstances present in the commission of a kidnapping to support durational and consecutive service departures for the kidnapping and first-degree criminal sexual conduct offenses committed during the kidnapping. Butterfield, 555 N.W.2d at 533. M.M. suffered more serious injuries than the victim in Butterfield, but the injuries were suffered during offenses for which Azeez was also sentenced and cannot be relied on to depart on the kidnapping sentence. The only other significant differences are that Azeez knew M.M. before this incident while Butterfield did not know his victim, and Azeez tied M.M.'s hands during portions of the kidnapping. See id. at 528-29 (facts underlying kidnapping and criminal sexual conduct offenses). We conclude that these differences are not sufficient to reach a different conclusion here than in Butterfield, and that the aggravating factors here do not constitute the severe aggravating circumstances necessary to support durational and consecutive service departures with respect to the first-degree criminal sexual conduct and the kidnapping sentences. We, therefore, affirm the durational departures and order the sentences to be served concurrently.
Azeez argues that his sentence for first-degree criminal sexual conduct should be reduced from 360 months to 182 months to avoid negating the effect of his acquittals on the first and second-degree attempted murder charges, which carried presumptive sentences shorter than the sentence imposed by the trial court. However, he does not explain why the 360-month sentence, which is a durational departure based on aggravating circumstances, negates the effect of his acquittals simply because it is longer than the presumptive sentences for the offenses for which he was acquitted. And he does not make any argument why the aggravating factors present in the criminal sexual conduct offense do not warrant the sentence imposed. Absent any argument that the aggravating factors do not support the sentence that was imposed, we conclude that the sentence does not negate the effect of the acquittals.
IV. Pro Se Brief
A. Racial Bias
In his pro se brief, Azeez argues that he was denied his equal protection rights because racial bias was the reason why he was charged with two counts of kidnapping, when one count was appropriate, and with first and second-degree assault, when one assault charge was appropriate.
There is no evidence that racial bias had anything to do with the charges in the complaint. The facts detailed in the complaint demonstrate probable cause to support all of the counts charged. See In re Welfare of A.C.N., 583 N.W.2d 303, 305 (Minn. App. 1998) (probable cause exists when "the facts appearing in the record, including reliable hearsay, would preclude the granting of a motion for a directed verdict of acquittal if proved at trial).
B. Appointment of Second Counsel
Azeez argues that the trial court erred when it failed to suspend the trial and appoint a second attorney to help him articulate the problems he had with his first attorney's representation and why his first attorney should be replaced for ineffective assistance of counsel.
After voir dire began, Azeez announced that he wanted to discharge his attorney, Trudell Guerue, and represent himself. Initially, the court told Azeez that it would not allow him to discharge Guerue. However, the next day, the court told Azeez that he could fire his attorney, but he would have to try the case himself with Guerue in the courtroom as an advisor. After the trial court explained what Azeez would be expected to do if he represented himself, Azeez decided that he did not have enough understanding to represent himself, but that he did not want Guerue to represent him. The court ruled that if Azeez was not going to represent himself, Guerue would continue as his attorney.
The Minnesota Constitution and the United States Constitution provide indigent defendants with the right to counsel in all criminal proceedings. State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977). A defendant, however, does not have an absolute constitutional right to the counsel of his choice. State v. Krejci, 458 N.W.2d 407, 413 (Minn. 1990). The trial court is obligated to provide an indigent defendant with a capable attorney, but the defendant must accept the appointee. State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970). A request for substitute counsel "will be granted only if exceptional circumstances exist and the demand is timely and reasonably made." Vance, 254 N.W.2d at 358.
The trial court correctly informed Azeez that he did not have an absolute right to choose his trial counsel. Because the trial had already started, the court gave appellant the choice of representing himself or continuing with Guerue's representation. The trial court understood that there was a personality conflict between Azeez and Guerue, but also recognized that Guerue was doing a "more than competent job" in representing Azeez. Azeez has not demonstrated that exceptional circumstances warranted appointment of substitute counsel. The trial court did not abuse its discretion by denying the request for substitute counsel.
C. Questioning Before Miranda Warning
Azeez contends that the trial court erred by denying his motion to suppress statements he made to police officers before he was read a Miranda warning. Harmless error analysis applies to a trial court's admission of evidence in violation of the defendant's constitutional rights. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Even if the trial court erred by not suppressing the statements Azeez made to police before receiving a Miranda warning, the error was harmless beyond a reasonable doubt. See State v. Hazley, 428 N.W.2d 406, 411 (Minn. App. 1988) (applying harmless beyond a reasonable doubt standard to erroneous admission of defendant's statements), review denied (Minn. Sept. 28, 1988).
There was overwhelming evidence identifying Azeez as the person who kidnapped and assaulted M.M. At trial M.M., who knew Azeez previously, identified him as the person who kidnapped and assaulted her during a 14-hour period. Two witnesses testified that they saw Azeez choking M.M. and that he fled on a bike in the direction of the Mississippi River. Also, a police officer testified that he apprehended Azeez in the Mississippi River, and health care professionals testified that M.M. could have died from her injuries. There is no reasonable doubt that the jury's verdict was not affected by the statements Azeez made before receiving a Miranda warning.
D. Mental Examination
Azeez argues that the trial court abused its discretion by not following the correct procedures for entering a defense of mental impairment under Minn. R. Crim. P. 20.02. Azeez contends that if he were white, he would have been properly examined under Rule 20.02, subd. 2.
Azeez's argument is undeveloped and vague, and he does not cite any authority for the argument. Assignment of error based on mere assertion and not supported by any argument or authority will not be considered on appeal unless prejudicial error is obvious on mere inspection of the record. State v. Lipscomb, 289 Minn. 511, 513, 183 N.W.2d 790, 792 (1971). There is no obvious prejudicial error.
E. Failure to Admit Fingerprint Evidence
Azeez argues that he was denied his constitutional due process rights because fingerprint evidence from the knife would have proved that M.M handled the knife.
This argument is meritless. Defense counsel never attempted to introduce the fingerprint evidence at trial, and the trial court never ruled on this issue. There was no need to introduce the fingerprint evidence because M.M. testified that she grabbed the knife. And Azeez concedes that even if this evidence had been introduced, it would not have exonerated him.
F. Ineffective Assistance of Counsel
Azeez contends that he received ineffective assistance of counsel and argues that because the record before this court is not complete, his motion for remand should be granted, thus staying the appeal until the trial court record is amended to reflect his assertions. But there is no motion for remand before this court. Furthermore,
a direct appeal from a judgment of conviction is not the most appropriate way to raise a claim of ineffective assistance of trial counsel because the reviewing court does not "have the benefit of all the facts concerning why defense counsel did or did not do certain things." The most appropriate procedure for raising such a claim is to seek a postconviction hearing before appeal. Nevertheless, at the request of an appellant, we will on direct appeal, without the benefit of a postconviction hearing transcript, address the issue of ineffective assistance of trial counsel.
Roby v. State, 531 N.W.2d 482, 484 n.1 (Minn. 1995) (quoting State v. Zernechel, 304 N.W.2d 365, 367 (Minn. 1981)) (citations omitted) (emphasis in original). Because Azeez contends that the record is not adequately developed to permit proper review of his ineffective assistance of counsel claim, and he does not request that we review the claim without the benefit of a correct record, we will not address the claim.
G. Prosecutorial Misconduct
Azeez argues that the prosecutor committed misconduct by knowingly encouraging M.M. to lie on the stand, resulting in his wrongful conviction. "Upon a claim of prosecutorial misconduct, the court must determine if there was improper conduct and, if so, whether it was serious." State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). The determination whether a prosecutor acted improperly is generally left to the sound discretion of the trial court. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). Nothing in the record suggests that Azeez alleged in the trial court that the prosecutor knowingly introduced false testimony. Because this issue was not raised at trial, Azeez has waived his right to raise the issue on appeal. See State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980) (defendant who fails to object generally waives issue of prosecutorial misconduct).
Furthermore, on appeal, Azeez does not cite any evidence of prosecutorial misconduct. To support his argument that the prosecutor knowingly allowed M.M. to provide false testimony, he merely points out inconsistencies in M.M.'s testimony. Inconsistencies alone "do not necessarily constitute false testimony or a basis for reversal." State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985); see also State v. Gustafson, 379 N.W.2d 81, 85 (Minn. 1985) (concluding defendant failed to show that inconsistent testimony was perjured). It is the jury's role to assess inconsistencies in testimony. State v. Steinke, 292 N.W.2d 243, 244 (Minn. 1980).
In conclusion, we vacate the conviction and sentence for kidnapping to facilitate the commission of a felony in violation of Minn. Stat. § 609.25, subd. 1(2), and we vacate the consecutive sentence for kidnapping to commit great bodily harm or to terrorize the victim or another in violation of Minn. Stat. § 609.25, subd. 1(3) and order that the sentence be served concurrently with the sentence for first-degree criminal sexual conduct. In all other respects, the decision of the trial court is affirmed.
Affirmed as modified.