This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Allen Todd Grant, petitioner,



State of Minnesota,


Filed March 10, 1998


Huspeni, Judge

Ramsey County District Court

File No. K6961289

John M. Stuart, State Public Defender, Cathryn Middlebrook, Asst. State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Asst. Ramsey County Attorney, 50 Kellogg Blvd. W., Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.



Appellant challenges the district court's denial of his postconviction petition without an evidentiary hearing. Because we see no abuse of the court's discretion in denying the petition and because review on the merits of the issues on appeal reveals no error at trial, we affirm.


In April 1996, appellant Allen Todd Grant was charged with simple robbery in connection with a hold-up at a Fina Station in St. Paul. In June, appellant's counsel brought a motion for a continuance, asserting that she was unprepared to represent appellant. The motion was denied. Before trial, respondent State of Minnesota amended the charge against appellant to aggravated robbery in the first degree. The jury convicted appellant of aggravated robbery, and he was sentenced to 54 months in prison. Appellant filed a notice of appeal that was dismissed pending a decision on his petition for postconviction relief.

In his petition, appellant argued that a new trial should be granted because of the ineffective assistance of counsel, the erroneous admission of evidence of other crimes, the trial court's refusal to instruct the jury on a lesser-included offense, insufficient evidence, and prosecutorial error in amending the charge to aggravated robbery. The court denied the petition without an evidentiary hearing.


"This court reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion." Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

A person is entitled to an evidentiary hearing if he alleges facts that, if proven, would entitle him to the requested relief. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990). Allegations raised in a postconviction petition must be more than "argumentative assertions without factual support." Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996). The postconviction court in this case denied appellant's petition without an evidentiary hearing because the petition contained only simple "assertions without factual support."

Ineffective assistance of counsel

For an evidentiary hearing to be granted based on a claim of ineffective assistance of counsel, appellant must

allege facts which would affirmatively prove that his counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Fratzke, 450 N.W.2d at 102 (quotation and citation omitted). In support of his petition for postconviction relief, appellant argued in relation to ineffective assistance of counsel only:

[Appellant] was denied his right to a fair trial and effective assistance of counsel where the trial court denied [appellant's counsel's] motion for a continuance.

[Appellant] was denied his right to a fair trial and effective assistance of counsel where [appellant's] counsel failed to properly investigate the case and interview witnesses before trial, and failed to present the exculpatory testimony of the co-defendant * * *.

This brief argument makes only general, sweeping accusations regarding counsel's handling of the case. The petition fails to give any detail as to what elements of appellant's case were not properly investigated, which witnesses were not interviewed, and what exculpatory testimony was not presented. In addition to these basic factual deficiencies, the petition also fails to argue how "but for counsel's unprofessional errors" the outcome of the case would have been different. Finally, appellant argues that he was prejudiced by the denial of his motion for a continuance, but fails to make any statement as to how he was prejudiced by the denial, or how granting the motion would have changed the outcome of the case.

Without detailing his accusations against counsel or the court, appellant does not allege facts that would prove that his counsel's conduct fell below an objective standard of reasonableness. Without such facts, the court is left to assess appellant's claims based on "argumentative assertions without factual support." See Roby, 547 N.W.2d at 356. Appellant was not entitled to an evidentiary hearing on the issue of ineffective assistance of counsel because he did not allege sufficient facts that, if proven, would show he is entitled to relief. See Fratzke, 450 N.W.2d at 102.

Evidence of other crimes 1

Appellant contends that he was denied the right to a fair trial because the court admitted evidence of other crimes that was "irrelevant" and "overly prejudicial." The decision to admit prior crime evidence rests in the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion. State v. Buhl, 520 N.W.2d 177, 180 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).

Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Minn. R. Evid. 404(b). The weakness of the state's case on the relevant issue militates in favor of admission of evidence of prior bad acts when the court weighs the probative value of the evidence against its prejudicial effect. State v. Moorman, 505 N.W.2d 593, 602 n.5 (Minn. 1993).

In the present case, respondent submitted a certified copy of appellant's 1991 conviction for simple robbery to prove appellant's intent to commit a crime. Respondent did so in anticipation of an argument from appellant that, because appellant did not enter the store at the time of the robbery, he was an unknowing participant.

In admitting the evidence, the trial court reasoned that the case against appellant was "entirely circumstantial" and lacked any witness identification or any evidence that appellant entered the store. The court also stated that submission of a certified copy of the conviction, though not the preferred method, was sufficient when the evidence was submitted only to show intent.

Appellant fails to state why the evidence of his conviction for simple robbery was irrelevant or overly prejudicial. According to Minn. R. Evid. 404(b), evidence of a prior crime is admissible when it is offered to prove the intent element of a crime. Respondent introduced evidence of only one of appellant's three convictions for robbery or aggravated robbery. We do not deem that introduction to be an attempt by respondent to attack appellant's character. Admission of the evidence was not an abuse of discretion.

Appellant also argues that the trial court erred by admitting the evidence in the form of a certified copy of the conviction with no accompanying testimony. We disagree. State v. Crocker, 409 N.W.2d 840, 843-44 (Minn. 1987), specifically rejected the notion that both parties must agree before evidence of a prior crime can be admitted in the form of certified court documents. Crocker stated that, although the state will usually need to call witnesses to prove other crimes, it is not mandated. Id. at 844 (citing secondary authorities stating that evidence of prior crimes can be admitted with court documents by relying on the Federal Rule of Evidence 803(22) exception to hearsay).

In this case, the evidence was introduced only to prevent appellant from arguing that he was an unknowing participant in the commission of a robbery, not to attack appellant's character in front of the jury or to show behavior in conformity with the crime charged. Given the limited use of the challenged evidence, the trial court's broad discretion in admitting evidence, and the failure to show that the admission was prejudicial, the trial court did not err in admitting the evidence.

Lesser-included offense

The difference between simple robbery and aggravated robbery is whether there was bodily injury to the victim. See Minn. Stat. § 609.245, subd. 1 (1996) ("Whoever, while committing a robbery, * * * inflicts bodily harm upon another, is guilty of aggravated robbery in the first degree * * *.").

The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.

Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted). Appellant argues that the trial court abused its discretion when it refused to instruct the jury on the lesser-included offense of simple robbery. We disagree. The trial court, in refusing appellant's request for an instruction on the lesser-included offense, stated that "[the victim] testified, and there was no rebuttal of that testimony, testified that he did feel physical pain when he was struck four or five times * * *."

The test of whether or not to include an instruction on a lesser-included offense is:

[W]hether the evidence would reasonably support a conviction of the lesser degree and at the same time is such that a finding of not guilty of the greater offense would be justified. * * * [I]t is error not to submit lesser degrees except in those extraordinary cases where the failure to do so is otherwise supported by a proper exercise of the trial court's discretion and no prejudice to defendant results.

State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (Minn. 1975).

The question in this case is whether the evidence would reasonably support a conviction on the lesser offense, but acquittal on the greater offense. As the trial court noted, the evidence regarding the victim's injury from being punched four or five times in the kidneys was unrefuted. In opposition to the evidence, appellant's counsel merely elicited testimony from the victim that he did not tell the police that he suffered bodily harm, only that he had been punched a few times. This does not create enough doubt about the bodily harm to justify a jury distinguishing between the two. See Bellcourt, 390 N.W.2d at 273 ("[P]roof of the elements which differentiate the two crimes must be sufficiently in dispute so that a jury may make this distinction.") (quotation omitted). The trial court did not abuse its discretion in refusing to instruct the jury on the lesser-included offense.

Insufficient evidence

Appellant next argues that there was insufficient evidence to support his conviction.

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).

Appellant admits going to the gas station on the morning of the robbery, but argues that he was outside while the two passengers went inside and robbed the cashier. A witness at the scene stated that he saw appellant's vehicle pull into the alley when the two robbers exited the store, but could not say if they got into appellant's vehicle. In addition, when police attempted to pull over a vehicle matching the description of the vehicle at the gas station, the vehicle accelerated and crashed. Appellant was arrested a few minutes later, and he was identified by police as the driver. The disabled vehicle was registered in appellant's name.

There is sufficient evidence to support the jury's verdict that appellant knowingly participated in the robbery and was guilty of first-degree aggravated robbery.

Denial of due process

Finally, appellant argues that he was denied due process when respondent amended the complaint from simple robbery to aggravated robbery in the first degree. Again, we disagree. Allowing a complaint to be amended is in the sound discretion of the trial judge. See Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982) (allowing amendment of a complaint after the trial had begun according to Minn. R. Crim. P. 17.05). "Under Minnesota Rule of Criminal Procedure 3.04, subd. 2, the trial court is relatively free to permit amendments to charge additional offenses before trial * * *." State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990).

The facts of the case support the increased charge of aggravated robbery and, though appellant argues that the amendment was motivated by vindictiveness in response to appellant's exercise of his right to trial by jury, he asserts no facts to support this argument. There is nothing in the facts to indicate why the charge was amended, but respondent notes, and we agree, that increasing a charge because a defendant refuses to plead guilty does not violate the defendant's due process. Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S. Ct. 663, 669 (1978) (holding that "openly present[ing] the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment."). Appellant's due process rights were not violated when respondent amended the charge.

The postconviction court did not abuse its discretion in denying appellant's petition for postconviction relief without an evidentiary hearing. Appellant's petition does not state sufficient facts to warrant an evidentiary hearing according to the standards established in Fratzke. A substantive review of appellant's arguments on their merits also indicates that the trial court did not abuse its discretion.