This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-99-1010

 

State of Minnesota,

Respondent,

 

vs.

 

Jason Jalony Cox,

Appellant.

 

Filed May 2, 2000

Reversed

Amundson, Judge

 

Hennepin County District Court

File No. 98084359

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103;  and

 

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 Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Huspeni, Judge. ^*

U N P U B L I S H E D   O P I N I O N

 

AMUNDSON, Judge

 

Appellant challenges his conviction for first-degree aggravated robbery, arguing the district court erred in refusing to submit the lesser offense of attempted aggravated robbery to the jury.  Concluding the court erred in failing to submit the lesser offense of attempted aggravated robbery, we reverse.

FACTS

 

            On July 19, 1998, Andre Fisher received a phone call from Terrance Foulks, who wanted to purchase marijuana from Fisher.  The men arranged to meet in the neighborhood.  Two men approached Fisher: one of the men was Foulks, and the other was a man wearing a mask.

At trial, Mark Stevenson identified the man wearing the mask as appellant, Jason Cox.  Stevenson testified that he discussed robbing Fisher of his marijuana with Foulks and Cox, but later declined to participate in the robbery and stayed a distance away from the encounter among Fisher, Cox, and Foulks.  

                When Fisher’s assignation with Foulks and Cox was perfected, he handed the marijuana to them.  Cox then asked Fisher if he had any money.  When Fisher inquired why they wanted to know if he had any money, Cox replied that they were robbing him and pulled out a gun.  Fisher told Cox that he did not have any money, but Cox searched him anyway.  Finding no money, the two men took the marijuana and left without paying Fisher.  Initially, Fisher reported to the police that he had been robbed at gunpoint of money, but later Fisher told the police that the men actually took marijuana from him and only attempted to rob him of money.  Cox was convicted of first-degree aggravated robbery and this appeal followed.

D E C I S I O N

 

            Cox challenges his conviction by arguing that the district court erred when it refused to submit an instruction on the offense of attempted-aggravated robbery to the jury, we also address the issue of sufficiency of the evidence.  See Minn. R. Crim. P. 28.02, subd. 11 (stating this court has discretion to address any issue as justice requires).  When this court reviews a conviction to determine whether the evidence is sufficient to support the conviction, we view the evidence in the light most favorable to the conviction, State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989), and assume the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). 

            Here, Cox was charged with one count of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (1996). Aggravated robbery occurs when a person is armed with a dangerous weapon while committing a robbery.  Minn. Stat. § 609.245 (1996).  Robbery is committed when a person:

having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property * * * .

Minn. Stat. § 609.24 (1996).  The record is replete with testimony from the robbery victim, Andre Fisher, which demonstrates that Cox did not display the gun or refer to it in any manner until after Fisher had turned the marijuana over to the men.  Fisher testified:

Q:   What did the other person that was with Terrence Foulks do?

 

A:     Asked me for the marijuana or whatever.  Then asked me if I had any money.  Then pulled out a gun.

 

*  *  *  *

 

Q:     Now, you a second ago said that he asked you for money and asked you if you had marijuana and then pulled a gun.  Was this time that you just referred to, was that a second time?

 

A:     When I had first seen him I had gave him the marijuana; and then when he had pulled out the gun he asked me if I had any money.

 

*  *  *  *

 

Q:    Now, the suspect other than Terrence, did he order you to turn over the marijuana?

 

A:     Nuh-unh.

 

 

Q:    Did he have the gun out and order you to turn over the marijuana?

 

A:     No.  Yeah, when I first seen him or whatever I gave him the marijuana.  Then he asked me if I had any money or whatever, and he pulled out the gun.  And I said, “Why you want to know that?”  And then he pulled out the gun and he says, “this is a jack.”

 

*  *  *  *

 

Q:   And after you gave the second suspect the marijuana, did he give you money?

 

A:      No.

 

Q:      Did Terrence Foulks give you money?

 

A:      Nope.

 

Q:      Is that when the second suspect pulled the gun?

 

A:    After that, yeah, he asked me if I had any money then.

 

Q:      After you have him the marijuana, that’s when he pulled the gun?

 

A:      Yeah.

            Because there is a rational basis for acquitting on the greater charge (completed aggravated robbery), and conviction on the lesser charge of attempted aggravated robbery, the request for instruction on the lesser included offense should have been granted.  The state must show, beyond a reasonable doubt, that appellant not only participated in an attempted robbery, but that a robbery was perfected by something being stolen.  The jury could have concluded that nothing was stolen (something about which the victim had previously lied).  As such, it could have acquitted on the greater charge and convicted on a lesser.

            Further, after a careful review of the record, we find that the state failed to prove beyond a reasonable doubt that Cox was armed with a gun when he robbed Fisher of the marijuana.  The only evidence produced by the state pinpoints the appearance of the gun after Fisher handed the marijuana to Foulks and Cox.  Fisher’s own testimony repeatedly demonstrates that it was only after Fisher turned over the marijuana that Cox pulled out the gun and asked Fisher if he had any money on him.

            Based on the evidence presented by the state, the only offenses Cox could have been charged with and convicted of are simple robbery and attempted aggravated robbery.  But Cox was only charged with aggravated robbery and this was also the only charge presented to the jury.  Accordingly, Cox’s conviction for first-degree aggravated robbery cannot stand and we reverse.

Reversed.