This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2123

State of Minnesota,
Respondent,

vs.

Chan Om,
Appellant.

 

Filed January 17, 2006

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. KX034488

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Ted Sampsell-Jones, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his conviction of and sentence for first-degree aggravated robbery, arguing that the evidence was insufficient to support the conviction, the district court committed plain error in failing to instruct on the lesser-included offense of simple robbery, and the district court abused its discretion in denying his motion for a downward-departure sentence.  Because the evidence is sufficient to support the conviction, the district court did not err in failing to sua sponte instruct on a lesser-included offense and the court did not abuse its discretion in sentencing, we affirm.

FACTS

 

            O.M.S., the robbery victim, owns a restaurant in St. Paul.  On the night she was robbed, she closed the restaurant at approximately 10:30 p.m. and walked to the parking lot behind the building with her business partner, A.P.  A.P. and O.M.S. parted near A.P.’s vehicle, and A.P. started to get in his vehicle.  O.M.S. continued walking across the lot to reach her car.

            As O.M.S. approached her car, she saw two men standing in the alley near the parking lot, about two car lengths from her vehicle.  The men pulled bandanas over their faces, ran toward her, and when they got close she “saw that there were two guns.”  The men ran to opposite sides of her car, and she saw that the man closest to her wore a “striped shirt.”  She saw that the man on the other side of her car had a gun but did not notice what he was wearing.  Each man pointed a gun in her direction and the man closer to her took her purse.

Around this same time, O.M.S.’s brother, T.M., who lived in an apartment above the restaurant, was driving into the parking lot after his second-shift job.  He was still in his car when he saw the two men approach his sister.  A.P. also saw the men approach O.M.S.  Both A.P. and T.M. saw the men interfering with O.M.S. and realized that something was wrong.  They ran toward the commotion.  Neither man saw guns.

After the robbers took O.M.S.’s purse, they ran into the alley and toward Sherburne Street, immediately north of the alley.  O.M.S., T.M., and A.P. ran after the robbers.  O.M.S. saw the robbers jump a fence and run to a black truck that was “already . . . parked right in the middle of the road” on Sherburne Street.  The truck was facing west on Sherburne.  She saw the robbers run to the front of the vehicle.

A.P. lost sight of the men when he turned to talk to T.M., who was returning to the parking lot to get his car.  A.P. then jumped over the fence and caught up to O.M.S., who had already jumped over the fence.  O.M.S. told A.P. that the robbers were getting away and he asked, “where?”  O.M.S. pointed.  A.P. looked in the direction O.M.S. indicated and saw a “black pickup truck” driving very fast down the street.  He ran after the truck and could not get the license-plate number, but saw the truck turn and head north.  A.P. was simultaneously calling 911 to report the robbery.  He informed the 911 operator that there were no weapons involved.  He later testified that he told the operator this because he had not seen any weapons.

A patrol officer who was driving in the area heard the dispatch report of a recent robbery and the description of the suspects as two black males in a black pickup truck.  As he reached the next intersection, 11 blocks from the site of the robbery, he saw what he believed to be the suspect vehicle going north.  Shortly thereafter, police stopped the truck without incident and removed appellant, who was the driver, and two passengers, Artevis Glaze, and Tony Chan, from the truck.  Police recovered two bandanas, an air gun, and another gun from the cab of the truck.  They also recovered from Glaze a large sum of cash, approximately the sum O.M.S. had in her purse.

The police took O.M.S. and her brother to the location of the stop.  At trial, the prosecutor showed O.M.S. three pictures taken of the three men at the time of the stop.  She identified the photos as depicting the three men the police caught.  She matched appellant to his photo.  She identified the man in the photograph with the checked shirt as the one who took her purse.  O.M.S. testified that she knew appellant because she had spoken with him many times at her restaurant. 

O.M.S., who was born in Vietnam, testified through an interpreter.  On cross-examination, defense counsel impeached her with prior testimony she gave, apparently at the separate trials of the other robbers.  O.M.S. admitted to testifying about a “Cambodian man” at a previous trial and eventually, after much apparent confusion, admitted that she did not testify at one of the previous trials that she knew appellant.  She also admitted that, at the second trial, she testified that she knew appellant well and that he was not the one who robbed her.  O.M.S. gave contradictory testimony about whether she had told the police, on the night of the robbery, that she knew appellant.

The jury convicted appellant of aiding and abetting first-degree aggravated robbery.  Appellant moved for a downward dispositional departure, requesting probation based on his lack of prior felony convictions, his numerous friends and family support, and his steady employment history.  He also argued that there were mitigating offense-related factors supporting a downward departure, including his relatively limited role in the crime.

At the sentencing hearing, appellant’s counsel argued in favor of a dispositionaldeparture, but did not request a durational departure.  The state argued that this was a typical offense with no substantial, compelling, or mitigating reasons to depart.

The district court stated:

I did have an opportunity to review [appellant’s motion] in advance and consider the motion.  I considered the motion in light of the evidence in the case, in light of the Presentence Investigation . . . .  And I do not find that there are any substantial and compelling circumstances to warrant a departure from the guidelines in this case.

 

The district court sentenced appellant within the sentencing guidelines to 44 months.  This appeal followed.

D E C I S I O N

I.          Sufficiency of evidence

 

When reviewing a claim of insufficient evidence, this court carefully analyzes the record and any legitimate inferences that may be drawn from it to determine whether the jury’s verdict is reasonably supported by the evidence.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989); State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).  We view the evidence in the light most favorable to the conviction.  Webb, 440 N.W.2d at 430.  We must assume “that the jury believed the state’s witnesses and disbelieved any contrary evidence.”  Ulvinen, 313 N.W.2d at 428.  Issues of witness credibility, resolution of conflicting evidence, and the weight to be given the evidence are for the jury.  See State v. Bias, 419 N.W.2d 480, 484-85 (Minn. 1988).  A 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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  “It is well established that a conviction can rest upon the testimony of a single credible witness.”  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).

When a conviction is “based entirely on circumstantial evidence” it warrants “stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  “While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence.”  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt.  Jones, 516 N.W.2d at 549.  A jury is in the best position to evaluate circumstantial evidence, however, and its verdict is entitled to deference.  Webb, 440 N.W.2d at 430. 

Appellant was charged with aiding and abetting first-degree aggravated robbery.  The state had the burden of proving that appellant intentionally aided, advised, hired, counseled, or conspired with or otherwise procured the other two men to commit the robbery.  See Minn. Stat. § 609.05, subd. 1 (2002).  The state was not required to show appellant’s active participation in the overt act of the offense.  State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000).  A person’s “presence, companionship, and conduct before and after the offense are circumstances from which . . . criminal intent may be inferred.”  Ulvinen, 313 N.W.2d at 428.  But Minn. Stat. § 609.05, subd. 1, does not encompass inaction, knowledge, or passive acquiescence.  Id.  The state meets its burden by proving a “knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”  State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988) (quotation omitted). 

Evidence of participation in the escape portion of a robbery, as the driver of the “getaway” car, is participation in the offense itself creating aiding-and-abetting liability.  See, e.g., State v. Ritchie, 292 Minn. 413, 417, 195 N.W.2d 570, 572 (1972); United States v. James, 998 F.2d 74, 80 (2d Cir. 1993); United States v. Wilkins, 659 F.2d 769, 773 (7th Cir. 1981) (“The getaway is part of the robbery; therefore, the driver of the getaway car is a principal in the crime of robbery and not a mere accomplice after the fact.”), cert. denied, 454 U.S. 1102 (1981)).  And the prosecution need not present direct evidence of the driver’s participation but may show circumstantially that a defendant was the driver of the “getaway” vehicle.  United States v. Jones, 592 F.2d 1038, 1041 (9th Cir. 1979) (concluding that circumstantial evidence that defendant was connected to getaway car, that his fingerprints were on the steering wheel, along with defendant’s knowledge of robbery and his statements that could be seen as acknowledgement of guilt, was sufficient to permit finding beyond reasonable doubt defendant aided bank robbery), cert. denied, 441 U.S. 951 (1979). 

“[A] jury is free to question a defendant’s credibility based upon inconsistencies in his statement to police.  The jury has no obligation to believe a defendant’s story.”  Bliss, 457 N.W.2d at 390 (citation omitted).  Significant inconsistencies in a defendant’s statements to police may be considered as evidence supporting a conviction.  See State v. Race, 383 N.W.2d 656, 662 (Minn. 1986).  Such statements may diminish a defendant’s credibility and create reason to doubt the veracity of his theory of the case.  Id. 

Appellant’s argument is that several of the alleged inconsistencies in his story, which the prosecutor cited during her closing argument, were consistent statements.  But, regardless of whether the single statement appellant actually addressed, i.e., the alleged inconsistencies in his statements regarding where he had been and where he was going at the time of the offense, involved a factually incorrect or improper statement by the prosecutor, the prosecutor accurately pointed out several other internal inconsistencies in appellant’s statement and conflicts between his statement and the testimony of other witnesses.  The jury was entitled to resolve these conflicts against appellant.  Bias, 419 N.W.2d at 484.  The prosecutor accurately noted in closing that appellant’s statement to police that he drove fast at the robbers’ insistence conflicted with the testimony that appellant was not speeding when he was pulled over.  The prosecutor also pointed out that appellant had admitted he had a fake gun in the car to protect himself, and the evidence showed appellant’s gun was on top of the center console in the truck, yet appellant did not use the gun to ward off the alleged carjackers.  The prosecutor noted an inconsistency between appellant’s version that he had been carjacked and the testimony that he did not tell the officer who arrested him or transported him to the station that two men had just pointed a gun at him and forced him to drive. 

This court’s role is not to evaluate credibility or retry the facts.  State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978); see also State v. Darrow, 287 Minn. 230, 235, 177 N.W.2d 778, 781 (1970).  “The resolution of conflicting testimony is the exclusive function of the jury . . . .”  State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984).  Viewing all of the evidence in the light most favorable to the conviction, we conclude that the evidence was sufficient to permit the jury to find appellant guilty beyond a reasonable doubt of aiding and abetting first-degree robbery.

II.        Failure to instruct on lesser-included offense

 

            Appellant argues that the district court’s failure to sua sponte instruct the jury on the lesser-included offense of simple robbery was plain error requiring reversal.[1]  Appellant concedes that he did not preserve this issue for appeal by requesting the instruction or by objecting to the jury instructions given at trial.  The state argues that appellant has not met his burden of showing prejudice warranting a new trial under the plain-error test. 

The supreme court has adopted a three-part test for plain-error review.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  This court may review an unobjected-to error if there is: “(1) error; (2) that is plain; and (3) the error must affect substantial rights.”  Id. (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997)).  “If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.”  Id. (citing Johnson, 520 U.S. at 469, 117 S. Ct. at 1550).  An appellant bears the heavy burden of showing that the error was prejudicial and affected the outcome of the case.  Id. at 741.  The test for prejudice is not whether this court is convinced or certain that there was no effect on the verdict.  State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990).  Error is prejudicial only if there is a reasonable likelihood that the error would have had a substantial effect on the jury’s verdict.  Griller,583 N.W.2dat 741; Glidden, 455 N.W.2d at 747.  Reversal is not warranted unless there is an obvious error likely to have affected the verdict.  State v. Ihle, 640 N.W.2d 910, 916-17 (Minn. 2002). 

The Supreme Court has stated that the plain-error doctrine in the federal system authorizes appellate courts “to correct only particularly egregious errors, those errors that seriously affect the fairness, integrity or public reputation of judicial proceedings.  In other words, the plain-error exception . . . is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.”  United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046 (1985) (quotations omitted).

In State v. Dahlin, the supreme court stated that “absent plain error affecting a defendant’s substantial rights, a trial court does not err when it does not give a warranted lesser-included offense instruction if the defendant has impliedly [, i.e., by failing to request it, ] . . . waived that instruction.”  695 N.W.2d 588, 598 (2005).  Dahlin clarified that where the evidence warrants, a requested instruction on a lesser-included offense must be given.  Id. at 597.  Appellant suggests that the question of whether the court “plainly erred” by not giving the instruction in this case is answered by analyzing, under Dahlin and its predecessor cases, whether the instruction would have been required had it been requested. 

The case appellant cites that is most on point, State v. Gustafson, involved an appellant’s contention that the district court should have given a self-defense instruction sua sponte when it was not requested.  610 N.W.2d 314, 318 (Minn. 2000).  Recognizing that there was evidence in the record to support giving a self-defense instruction and that self-defense might have been a successful defense for the appellant, the supreme court held that the district court did not err by not sua sponte giving a self-defense instruction, when the appellant had not notified the state of her intention to raise it as a defense and had in fact not presented her case in terms of self-defense.  Id.at 319.  The court recognized that “the trial court has the ultimate responsibility to ensure that all essential instructions are given under the law” but that this responsibility did not “require the court to instruct the jury, sua sponte, on the affirmative defense of self-defense when it was not raised, argued, or requested.”  Id. at 320 (quotation omitted); see also State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001) (stating that “the precise question before us is whether the trial court’s failure to sua sponte strike the testimony or to provide a cautionary instruction constituted plain error,” but not analyzing whether striking the evidence or giving a cautionary instruction would have been required or appropriate had it been requested). 

In this case, an instruction on simple robbery as a lesser-included offense would have been required had appellant requested the instruction, but the court was not required to sua sponte give such an instruction when the defense was that appellant had nothing to do with any robbery, simple or aggravated.[2]  We conclude, therefore, that the district court did not err in failing to sua sponte instruct on the lesser-included offense, and because there was no error, we need not address the “prejudice” prong of the plain-error analysis.

III.       Sentencing

The district court has broad discretion in determining whether to depart from the sentencing guidelines and will not be reversed absent an abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). 

The Sentencing Guidelines establish presumptive sentences that specify the duration and the presumptive disposition.  Minn. Sent. Guidelines cmt. II.C.01.  The guidelines direct the judge to impose the presumptive sentence “unless the individual case involves substantial and compelling circumstances.”  Id.II.D.  When such circumstances are present, the sentencing judge “may depart from the presumptive sentence . . . .”  Id.  A downward departure may be imposed only if the district court finds “substantial and compelling” circumstances.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Only in a “rare case” will an appellate court reverse the district court’s decision to impose the presumptive sentence.  Id.at 7.  “Substantial and compelling circumstances are those circumstances that make the facts of a particular case different from a typical case.”  State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985).  The district court is not obligated to grant a downward departure simply because a mitigating factor is present. State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001). 

If the district court does have discretion to depart from a presumptive sentence, i.e., if mitigating factors are present, it must exercise that discretion by deliberately considering reasons for as well as against departure.  State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984) (remanding imposition of presumptive sentence when district court simply stated that there were no legitimate bases for departure, but this court found several bases in the record that would support a downward departure; this court concluded that it was a case in which discretion was simply not exercised).

Appellant argues the district court abused its discretion in not granting a downward departure and that the record indicates the court failed to exercise its discretion. 

            The sentencing guidelines list several nonexclusive factors to justify a downward departure:

(1)       The victim was an aggressor in the incident.
(2)       The offender played a minor or passive role in the crime or participated under circumstances of coercion or duress.
(3)       The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants (drugs or alcohol) does not fall within the purview of this factor.

 

Minn. Sent. Guidelines II.D.2.a. 

Appellant cites his “minor and passive role” in the offense and the fact that the other two robbers were apparently not criminally punished by the time of this appeal (one having been acquitted and the other pending retrial after a mistrial) as the two mitigating reasons to depart durationally.  But appellant did not seek a durational departure in the district court, therefore this issue is not properly before us on appeal.  See Perkins v. State, 559 N.W.2d 678, 691 (Minn. 1997) (stating that an argument not raised below was not properly before appellate court).  Even if we were to address this issue, appellant’s assertion that he played a minor role is not supported by the conviction or citation to any legal authority.  The jury found him guilty of aiding and abetting aggravated robbery, thereby finding that he played an active and knowing role in the offense.  The jury’s finding that he aided and abetted the robbery is supported by evidence that appellant waited in a truck a block away while the others robbed the victim, picked them up to aid their escape, and allowed the use of his gun in the robbery.  Furthermore, the characterization of a defendant’s role in a crime as “passive” is best left to the district court to decide.  State v. Back, 341 N.W.2d 273, 275 (Minn. 1983) (declining to reverse presumptive sentence for appellant who aided and abetted second-degree felony murder but did not shoot the gun).  And even if it is found that a defendant played a minor or passive role in an offense, the district court has no obligation to depart durationally.  Id. 

Appellant cites State v. Bendzula in support of his argument that the court should have departed based on his codefendants’ avoidance of punishment.  675 N.W.2d 920 (Minn. App. 2004).  But Bendzula involved affirmance of a district court’s decision to depart, in part based on consideration of favorable treatment of codefendants, andmerely upheld this consideration in sentencing as not an abuse of discretion or an erroneous application of the law.  Id. at 924-25.  Bendzula does not hold that a court is obligated to depart based on inequity in a codefendant’s punishment.  There is no requirement that codefendants be given identical sentences.  Even a downward departure granted to a codefendant does not mandate that the sentencing court may not impose the presumptive sentence on the defendant.  State v. Lonergan, 381 N.W.2d 51, 53 (Minn. App. 1986). 

Dispositional-departure factors differ from the fixed determinate-sentencing factors that apply to durational departures, and generally focus on assessments of an offender’s personal characteristics to determine whether a dispositional departure is appropriate.  When considering whether to depart dispositionally, “the district court can focus more on the defendant as an individual and whether the presumptive sentence would be best for the defendant and for society,” as opposed to the offense-related factors relevant to a durational departure.  State v. Allen, 706 N.W.2d 40, 46 (Minn. 2005).  There are a number of factors developed in caselaw that may support dispositional departure.  These amenability-to-probation criteria include “the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family. . . .” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); see also State v. Hennessy, 328 N.W.2d 442, 443 (Minn. 1983) (noting the possibility that treatment and other probationary conditions will reduce recidivism); State v. Larson, 473 N.W.2d 907, 910 (Minn. App. 1991) (noting the availability of probationary conditions that can assure the defendant’s supervision and protect the public safety); State v. Hickman, 666 N.W.2d 729, 732 (Minn. App. 2003) (noting the availability of probationary treatment tailored to the defendant).

One of the factors appellant cites in his brief in support of a dispositional departure, that there is reason to believe he will be victimized in prison, was not argued to the district court as a reason to depart, and will not be considered on appeal.  Appellant argues his lack of a felony record and his “minor role” in the robbery as proof that he is not violent and does not pose a danger to society if sentenced to probation rather than prison.  But appellant’s gross-misdemeanor offense record for domestic assault weighs against the contention that he is not a violent person, and, as discussed above, the “minor role” issue is not clearly a mitigating factor in this case.

Appellant contends that the district court’s failure to expressly weigh each asserted mitigating factor on the record demonstrates its failure to exercise discretion.  Appellant relies on Curtiss and State v. Mendoza, 638 N.W.2d 480, (Minn. App. 2002), review denied (Minn. Apr. 16, 2002).

In Curtiss, this court remanded for reconsideration of departure factors.  The district court had simply stated that there were “no justifiable reasons” for departure and imposed the presumptive sentence.  353 N.W.2d at 263.  We determined that the record in that case contained “legitimate reasons for departure” including the defendant’s young age and that the behavior that led to his conviction (taking bottles of beer from the breezeway of an occupied house) was “barely within the scope of the serious charge” of first-degree burglary.  Id.  We stated that the factors for departure had not been “deliberately considered.”  Id. at 264.  In Mendoza, the district court relied on an improper consideration for departure.  638 N.W.2d at 484.  We concluded that there was evidence of other factors that would have supported a departure and remanded for reconsideration using the proper factors.  Id.

In this case, we conclude that the court’s statement that it considered appellant’s motion, evidence in the record, and information in the PSI, demonstrates that the district court exercised its discretion in denying appellant’s motion for a dispositional departure, and we cannot conclude that the district court abused its discretion in sentencing.     

Affirmed.