A04-1431

State of Minnesota,

Respondent,

vs.

Jacob Michael Dolney,

Appellant.

Filed September 6, 2005

Affirmed

Hudson, Judge

Polk County District Court

File No. K6-03-1442

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Gregory A. Widseth, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, Minnesota 56716 (for respondent)

John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

On appeal from his conviction of first-degree aggravated robbery and other offenses, appellant argues that the evidence is insufficient to support the conviction because appellant’s use of force did not accompany the taking of the property. Because the record reflects that appellant’s use of force accompanied the carrying away of the property, we affirm.

FACTS

On the morning of September 13, 2003, at around 4:00 a.m., Daniel Pawloski was working as a cashier at the Ampride Convenience store in Crookston, Minnesota. Appellant Jacob Michael Dolney arrived at the store and pumped roughly $8.00 worth of gas into his car. Afterward, appellant pulled his car up to the store and parked sideways across several parking spaces, facing the Highway 75 bypass.

Appellant entered the store and began walking up and down the aisles. Appellant picked up a bottle of water, opened it, and drank the water as he walked around gathering other items. Appellant brought the bottle of water and two other items up to the counter. While at the counter, appellant asked Pawloski whether there were any gravel pits in the area that would be suitable for practicing firing a gun. Pawloski testified that this question made him nervous, but he rang up appellant’s items. Appellant’s purchases, including the fuel, totaled $10.39.

A couple entered the store while appellant was at the counter talking with Pawloski. Appellant stated that he had forgotten his money and returned to his car, leaving the items on the counter. Pawloski observed appellant in his vehicle. It appeared to Pawloski that appellant was not looking for anything in his vehicle but, rather, was waiting.

After the couple left, appellant entered the store and walked up to the register, about three feet from Pawloski. Appellant reached into his jacket and pulled out a handgun. Pointing the gun at Pawloski’s chest, appellant told him to open the cash register. Pawloski, afraid of being shot, fumbled around and opened the register by hitting the “no sale” button. Before Pawloski could hand appellant any cash, Officer Daniel Chapa, an off-duty sheriff’s deputy, arrived at the store. When appellant observed the officer, he ran out of the store and drove off in his vehicle. Appellant did not receive any cash and did not pay for the gas or the bottle of water. Officers apprehended appellant shortly thereafter when he lost control of his vehicle and crashed near the home of Crookston Police Officer Chad Gobernatz, who was off duty at the time.

A jury found appellant guilty of, among other crimes, first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2002).

D E C I S I O N

Appellant challenges the sufficiency of the evidence underlying his conviction of first-degree aggravated robbery. When reviewing a challenge to the sufficiency of the evidence underlying a conviction, this court conducts a painstaking review of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, supports the verdict. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). This court assumes the jury believed the state’s witnesses and did not believe any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. Alton, 432 N.W.2d at 756.

Minnesota law defines robbery as follows:

Whoever, 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 is guilty of robbery.

Minn. Stat. § 609.24. If, while committing a robbery, one “is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon,” that person is guilty of first-degree aggravated robbery. Minn. Stat. § 609.245, subd. 1 (2002). The state must prove both that the use of force preceded or accompanied the taking or carrying away and that force was “used to overcome the victim’s resistance or compel his acquiescence.” State v. Kvale, 302 N.W.2d 650, 653 (Minn. 1981).

Appellant argues that the state failed to prove all of the elements of aggravated robbery because the “taking” in this action (i.e., appellant’s conduct of pumping gas and drinking water) was not accomplished through the use of a dangerous weapon. Moreover, because appellant made no effort to physically remove the money from the register before Officer Chapa arrived, the record reflects that appellant did not “take” any property when he actually brandished the handgun. Finally, appellant argues that his conduct while brandishing the handgun demonstrates that his objective was not to flee without paying for the gasoline and bottled water but, rather, to take money from the register, as appellant had the opportunity to flee from paying for his purchases when he left the store to search his vehicle for money.

Appellant’s argument fails because it improperly limits application of the statute to situations when the force accompanies the taking. In State v. Kvale, the defendant argued that the evidence was insufficient to support his aggravated-robbery conviction because his use of force (cutting the victim’s throat), occurred after he had already taken the victim’s money, and, therefore, the use of force did not facilitate the taking. Kvale, 302 N.W.2d at 651–52. The supreme court acknowledged that the defendant did not commit a robbery if the force was used “merely as a means of escape” with stolen property. Id. at 652. But the court affirmed the conviction because the threat of force preceded the taking and the force used to inflict bodily harm “overcame the victim’s power to resist and compelled his acquiescence both in the completed taking and in the contemporaneous carrying away of the money.” Id. at 653.

The court explained further:

The robbery statute speaks of using force or threats to compel acquiescence in either the taking or the carrying away of the property. It does not require that the use of force or threats actually precede or accompany the taking. It requires only that the use of force or threats precede or accompany either the taking or the carrying away and that the force or threats be used to overcome the victim’s resistance or compel his acquiescence in the taking or carrying away.

Id.

Relying on Kvale, this court has repeatedly upheld convictions of first-degree aggravated robbery when the use of force accompanied the carrying away of property. In State v. Brown, 597 N.W.2d 299, 303–04 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999), the defendant stole infant formula from a convenience store and placed the formula in his car without the use of force but struck the store manager with a hammer while attempting to drive away. This court affirmed, reasoning that the defendant used force to accomplish the carrying away of the formula. Id. at 304. In State v. Burrell, 506 N.W.2d 34, 36 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993), the defendant stole cigarettes from a convenience store without the use of force but bit the convenience store owner, who gave chase, as he was getting into his car down the street. This court affirmed because the entire confrontation took less than a minute and “the use of force in this case may be viewed as occurring more closely with the ‘carrying away’ of the cigarettes than with an escape.” Id.

Accordingly, while appellant correctly notes that he used no force or threat of force preceding or contemporaneously with taking the gas or the bottled water, the record contains sufficient evidence that appellant used force to accomplish the carrying away of the property. According to Pawloski’s testimony, appellant had not paid for either the gas or the bottled water when he re-entered the convenience store. Although appellant specifically asked for cash from the register when he brandished the handgun, a reasonable jury could conclude that appellant used the handgun to compel Pawloski’s acquiescence in the carrying away of the gas and the water. In other words, a reasonable jury could conclude that appellant did not intend to pay for either the gas or the bottled water upon acquiring cash from the register. Thus, the record contains sufficient evidence to support appellant’s conviction.

Appellant also makes several arguments in his pro se supplemental brief including: (a) the district court erred by failing to exclude Deputy Chapa’s testimony because it was hearsay; (b) the failure to properly gather evidence suggested a conspiracy to destroy evidence; (c) the prosecutor committed misconduct by failing to disclose that evidence was missing until the day of the trial; (d) the district court erred by permitting Mr. Pawloski to give testimony inconsistent with prior statements; (e) appellant received ineffective assistance of counsel because defense counsel failed to raise several issues at an omnibus hearing; and (f) the district court erred by failing to remove a biased juror. The record does not reflect that appellant raised any of these issues at the district court level. Moreover, appellant’s arguments are based solely on assertion and are not supported by argument or authority. Accordingly, this court need not address the issues raised in appellant’s pro se brief. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts will generally not consider matters not argued and considered in the court below); see also State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating that issues not adequately briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).

Affirmed.