This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).




State of Minnesota



Thomas James Fox,


Filed June 4, 1996


Davies, Judge

Ramsey County District Court

File No. K7944052

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Willis, Judge.



Appellant argues that his conviction for aggravated robbery must be reversed because it is barred by double jeopardy, evidence was destroyed, and he was denied his right to counsel and to produce a witness. He also claims that the sentencing court abused its discretion by imposing the mandatory minimum fine and an upward durational departure. We affirm.


Appellant Thomas James Fox approached William Harrison and asked for help starting a stalled car. Harrison drove Fox to the car, but declined his request to push it to a salvage yard. Appellant became upset and pulled what Harrison thought was a sawed-off .22 rifle from his pant leg. He demanded and took Harrison's money and parka.

Later that afternoon, when appellant became loud and obnoxious at a salvage yard, employees called the police. The police found a pellet pistol in appellant's possession.

Appellant pleaded guilty to carrying a firearm. On the following day, appellant was charged with the crime at issue on appeal, aggravated robbery in the first degree in violation of Minn. Stat. § 609.245, subd. 1 (1994). The jury found appellant guilty as charged.


I. Pretrial Destruction of Evidence

When appellant was taken into custody at the salvage yard, he had a pellet pistol in his possession. Harrison identified the pellet pistol as the gun with which appellant had threatened him. The pistol was then photographed and, per court order, destroyed prior to trial. Appellant claims his conviction must be reversed because the destruction of the firearm made it impossible for the jury to view it themselves to decide if Harrison reasonably believed it to be a dangerous weapon.

Before destruction of evidence will be seen as violative of a defendant's rights and subject to sanctions of dismissal or acquittal, the

evidence must both [1] possess an exculpatory value that was apparent before the evidence was destroyed, and [2] be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534 (1984); accord State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992) (quoting Trombetta standard), review denied (Minn. Sept. 15, 1992).

Appellant concedes that the gun was a common "air-gun, or 'BB gun,' sold in many discount and department stores." Obviously, then, a duplicate gun was reasonably available to appellant and could have been introduced at trial. As such, the weapon fails to meet Trombetta's second prong.

II. Double Jeopardy

Appellant claims that his conviction on the firearm offense, by reason of double jeopardy, bars this subsequent charge and conviction for aggravated robbery. We disagree.

[I]f 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.

Minn. Stat. § 609.035, subd. 1 (1994). The factors that must be considered include "time and place as well as whether the offenses were motivated by a desire to obtain a single criminal objective." State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994).

The two offenses in this case occurred at different times and places. The robbery was in Harrison's truck; the firearm possession took place several hours later at the salvage yard. Moreover, the motive of obtaining money illegally is too broad to constitute a "single criminal objective." Cf. State v. O'Hagen, 474 N.W.2d 613, 622 (Minn. App. 1991) (intent to use client funds for own benefit too broad a goal to fall within protections of Minn. Stat. § 609.035), review denied (Minn. Sept. 25, 1991). Because appellant's conduct constitutes two separate offenses, his conviction for firearm possession does not bar his prosecution and conviction for aggravated robbery.

III. Right to Counsel

Appellant claims his conviction must be reversed because the court failed to grant him a continuance to secure a private attorney. It is within a trial court's discretion to "deny last-minute requests for substitute counsel which inevitably delay trial." State v. Harris, 407 N.W.2d 456, 463 (Minn. App. 1987), review denied (Minn. July 31, 1987). A defendant's request "will be granted only if exceptional circumstances exist and the demand is timely and reasonably made." State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977).

Appellant had two separate criminal trials scheduled for the same day. Appellant had separate public defenders for the two cases. At trial he expressed great dissatisfaction with the attorney appointed to represent him on a motor vehicle theft charge, but expressed no specific concern about the public defender who was representing him on this, the robbery charge. He asked for a continuance to obtain a private attorney to represent him on both charges. The court relieved the public defender on the theft charge and ordered that the instant case proceed first.

We disagree with appellant that the trial court's failure to grant a continuance necessitates reversal. First, appellant failed to show "exceptional circumstances," never expressing specific unhappiness with his public defender on this charge (although he was very vocal regarding his concerns about his counsel on the other charge). Second, his request was not timely. His day-of-trial request was the first time he moved for a continuance to obtain a private lawyer, even though he had the opportunity before then to express his concerns to a judge. Third, appellant conceded that his motion was made for delay, so that he would have time to raise money for a private attorney. Fourth, appellant has not shown that he was so prejudiced in preparing or presenting his defense as to affect materially the outcome of the trial.

IV. Production of Witness

A witness for appellant, who had not been subpoenaed, did not appear at 1:30 p.m. (when expected) the day she was to testify. The witness had been in attendance on prior days. The public defender asked the court to wait until at least 3:00 p.m. before proceeding with final arguments. When the witness had not yet arrived by 3:00, the court denied appellant's motion for a continuance. Appellant claims that the denial was an abuse of discretion.

In determining whether [a defendant's] constitutional rights have been violated, we must consider whether he sufficiently showed, when he moved for the continuance, that [1] the missing witness would be found within a reasonable time and [2] would provide favorable, noncumulative evidence.

State v. King, 414 N.W.2d 214, 219 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).

We have considered the two King factors and conclude that appellant has not met either. The defense made no showing that with a continuance it would be able to produce the witness within a reasonable time, and it did not reveal, through an offer of proof (per Minn. R. Evid. 103(a)(2)), what favorable, noncumulative evidence the witness would have provided.

V. Imposition of Mandatory Minimum Fine

Appellant argues that the trial court abused its discretion by ordering him to pay a mandatory minimum fine of $10,500. Although the court may not waive the minimum fine, it may reduce the amount upon written findings "that the convicted person is indigent or that immediate payment of the fine * * * would create undue hardship for the convicted person or that person's immediate family." Minn. Stat. § 609.101, subd. 5 (1994). There is no requirement, however, that a court must base a fine on one's ability to pay. State v. Patterson, 511 N.W.2d 476, 479 (Minn. App. 1994), review denied (Minn. March 31, 1994). The trial court's imposition of the mandatory minimum fine was within its discretion.

VI. Imposition of Upward Durational Departure

The trial court found that appellant had five previous felony convictions and that this conviction was part of a pattern of criminal conduct. Accordingly, the court doubled the presumptive sentence and sentenced appellant to an executed 216 months.

A trial court's sentencing departure will not be disturbed absent an abuse of discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Under Minnesota law, "career offenders" can receive upward aggravated durational departures

if the judge finds and specifies on the record that the offender has more than four prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.

Minn. Stat. § 609.152, subd. 3 (1994). The court, though without referring to the statute, made those findings on the record, and thus did not abuse its discretion in departing upwards.