This opinion will be unpublished and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

A05-907

 

State of Minnesota,

Respondent,

 

vs.

 

Eric Gable,

Appellant.

 

Filed August 29, 2006

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 04068177

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction of aiding and abetting aggravated robbery, arguing that the district court erred by failing to instruct the jury on the lesser-included offense of theft and that appellant’s sentence violates Blakely v. Washington, 542 U.S. 296 (2004), and raising several issues in a pro se brief.  Because the district court had the discretion to deny appellant’s request to give the lesser-included instruction, appellant’s sentence does not violate Blakely, and we find no merit in appellant’s pro se arguments on appeal, we affirm.

FACTS

            Michael Vollbrecht testified at trial that he made his first delivery of groceries on October 11, 2004, to the EZ Stop store in Minneapolis.  When Vollbrecht completed his delivery at the EZ Stop, he returned to his truck to complete paperwork.  The truck engine was off, and the key was in the ignition. 

Vollbrecht noticed a man across the street wearing a white dust mask over his mouth and nose.  About five minutes later, a man came to the closed driver’s-side window and yelled, “I’ve got a gun.  Let me in.”  Vollbrecht heard a noise, and another man, later identified as appellant Eric Gable, broke the passenger-side window and unlocked the side door.  Appellant jumped into the truck and managed to open the driver’s-side door, enabling the first assailant to jump in.  The first assailant held an object covered by a newspaper in his hand.  Appellant held a wrench.

Vollbrecht was pushed to the center, and appellant searched his pockets.  Vollbrecht said he felt “terrified.”  When the first assailant could not start the truck, appellant crawled across Vollbrecht to assist.  Vollbrecht then “bailed” out of the truck, taking the wrench and his paperwork.  He said he did not struggle with either of the men in the cab of the truck.

Vollbrecht went inside the EZ Stop and asked the manager to call the police.  By the time he returned to the parking lot, appellant and the first assailant had managed to start the truck and had driven off.  Vollbrecht and the EZ Stop manager pursued the truck in the manager’s car.  Vollbrecht eventually saw the truck coming in the opposite direction but at that time saw only one person in the truck.  A squad car was following the truck.  When the driver of the truck jumped out, the police began chasing him.  Vollbrecht also pursued the driver, whom he later identified as appellant.

Vollbrecht caught up to appellant first and began hitting him on the head with the wrench.  Appellant fell down, and the officer arrived and arrested him.  An officer found a dust mask similar to the one Vollbrecht had seen on a man right before the robbery.  Vollbrecht also found a gun lying under a newspaper on the floor of the truck when he retrieved some things from the truck.  A police photograph taken of Vollbrecht on the day of the incident reveals a split lip and a scratch on his back that he received when he fled the truck.

            The arresting officer, Ulberg, testified at trial that appellant made several admissions on the ride to the police station, including a statement that appellant was “not guilty of carjacking because all he did was break the window and stole [sic] the truck.  And he stole it because he was hungry and wanted food.”

            Appellant did not testify at trial.  At the close of trial, appellant moved for an instruction on the lesser-included offense of theft but specifically withdrew a request for an instruction on the lesser-included offense of robbery.  The district court declined to give the instruction, agreeing with the state’s argument that force was used in the incident because the victim was physically injured so there was no rational basis for the jury to acquit on the greater charge but convict on a lesser charge.  The jury convicted appellant of aiding and abetting aggravated robbery.  The district court sentenced appellant to the presumptive sentence of 108 months.  This appeal follows.

D E C I S I O N

I.

            Appellant contends that the district court should have instructed on the lesser-included offense of theft.  “[W]e review the denial of a requested lesser-included offense instruction under an abuse of discretion standard.”  State v. Dahlin, 695 N.W.2d 588, 597 (Minn. 2005).  But when the evidence warrants a requested lesser-included-offense instruction, the district court must give it.  Id.  The evidence warrants an instruction when “1) the lesser offense is included in the charged offense; 2) the evidence provides a rational basis for acquitting the defendant of the offense charged; and 3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense.”  State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2005) (citing Dahlin, 695 N.W.2d at 595).

            In evaluating the evidence, the district court must look at the evidence in the light most favorable to the party requesting the lesser-included-offense instruction.  Id. at 510.  “‘[W]hen evidence exists to support the giving of the instruction, it is an abuse of discretion for a trial court judge to weigh the evidence or discredit witnesses and thereby deny an instruction.’”  Id.at 510 (quoting Dahlin, 695 N.W.2d at 598).  But the lesser-included instruction is not required when “no evidence is adduced to support acquitting of the greater charge and convicting of the lesser.”  Id. at 511.

            First, a court must consider whether the lesser offense is included in the charged offense.  Id. at 509.  A defendant “may be convicted of either the crime charged or an included offense, but not both.”  Minn. Stat. § 609.04, subd. 1 (2004).  A lesser offense is “necessarily included” if a defendant cannot possibly commit the greater offense without also committing the lesser offense.  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986); see also Minn. Stat. § 609.04, subd. 1(4) (“An included offense may be . . . [a] crime necessarily proved if the crime charged were proved[.]”).

Minnesota caselaw supports appellant’s contention that theft is a lesser-included offense of aggravated robbery.  See State v. Nunn, 351 N.W.2d 16, 19 (Minn. App. 1984) (“Aggravated robbery requires the commission of a theft; if there were no theft the offense would be assault.”).  Therefore, we next consider whether the evidence supported giving the instruction.  See Hannon, 703 N.W.2d at 509.

            Appellant argues that the district court should have instructed on the lesser-included offense of theft because the arresting officer testified that appellant told the police that he was not guilty of carjacking because he only broke a window and stole the truck.  Appellant contends that, from this evidence, the jury could have rationally concluded that appellant was guilty of theft but acquitted appellant of aggravated robbery.  Appellant also argues that the district court erred by making a credibility determination that Vollbrecht’s testimony was more credible than the statement appellant gave to police.  In his pro se brief, appellant argues that because the jury asked a question during deliberations about whether the victim left the keys inside the vehicle, the jury was considering that appellant had only committed theft and not aggravated robbery.

            But the evidence that appellant highlights is merely appellant’s opinion offered to police officers that he was not guilty of a carjacking and appellant’s admission that he broke a window and took a truck.  Even taking appellant’s statements to the police officers as true, the statements do not directly contradict the state’s theory of the case that appellant aided another person to rob the victim of the delivery van by force.  The jury’s question during deliberations is not an appropriate basis for consideration under Dahlin, as it is not evidence admitted at trial.

            The district court declined to give the instruction because force was used in the incident, evidenced by the fact that the victim was physically injured.  From the record, we conclude that appellant’s statements as related in the arresting officer’s testimony did not create a rational basis for the jury to have acquitted appellant of aggravated robbery but convicted him of theft.  Therefore, the district court did not abuse its discretion by denying appellant’s request for a lesser-included-offense instruction.

II.

Appellant argues for the first time on appeal that his sentence was imposed in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), because the district court relied on the sentencing worksheet to find that appellant had a custody-status point.  Ordinarily, appellate courts will not decide issues, even constitutional questions of criminal procedure, that are raised for the first time on appeal.  State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  However, in the interests of justice, the Minnesota Supreme Court recently considered the application of Blakely to the assignment of a custody-status point.  State v. Allen, 706 N.W.2d 40, 47 (Minn. 2005).

            In Allen, the supreme court held that Blakely does not require a jury to make a finding of fact regarding the existence of a custody-status point.  Id. at 47-48.  A defendant’s custody status may be determined by reviewing court records relating to that conviction.  Id.  In light of the supreme court’s holding in Allen, the district court did not violate appellant’s Sixth Amendment right to a jury. 

III.

            Appellant also argues in his pro se supplemental brief that: (1) the district court erred when it did not instruct the jury on simple robbery; (2) the evidence is insufficient to support his conviction; (3) the district court erred when it answered the jury’s question; and (4) the state failed to disclose the names of its witnesses in a timely fashion and failed to supply an emergency-call transcript and a police work order on the apprehending officer’s vehicle.

A.        Failure to instruct on simple robbery

            While appellant initially requested an instruction on simple robbery, appellant’s attorney specifically withdrew the motion during argument on the inclusion of the lesser-included theft instruction.  District courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Because appellant’s attorney withdrew the request for the instruction on the lesser-included offense of simple robbery and because no rational basis existed to convict appellant of simple robbery while acquitting him of aggravated robbery, we conclude the district court did not err when it did not include the instruction on simple robbery.

B.        Insufficient evidence

            In considering a claim of insufficient evidence, this court’s “review 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 [that] they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that “the jury believed the state’s witnesses and disbelieved 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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            The evidence adduced at trial was sufficient for the jury to reasonably conclude that appellant committed aggravated robbery on October 11, 2004.  Vollbrecht testified that two persons approached his vehicle.  The first brandished a newspaper covering an object that he claimed was a gun and demanded to be let in the truck.  The second, who Vollbrecht identified as appellant, broke the passenger window with a wrench, unlocked that door, and climbed in and then opened the driver’s door.  When the perpetrators attempted to start the truck and leave, Vollbrecht escaped.  The perpetrators finally got the truck started and left the EZ Stop without Vollbrecht.  Therefore, appellant, one of the perpetrators, took the truck, knowing he had no claim of right to it.  The police and Vollbrecht saw appellant running from the stolen truck.  And according to the officer’s testimony, Vollbrecht positively identified appellant at the scene of the arrest as the person who entered the truck with a wrench.  Based on this uncontested testimony, the evidence was sufficient to convict appellant of aggravated robbery.

C.        Error to answer jury’s question

            During deliberations, the jury asked to see the transcript to verify whether the keys were in the ignition when Vollbrecht entered the EZ Stop.  Appellant, defense counsel, the prosecution, and the district court were present when the district court responded to the question.  Appellant now argues that the district court erred when it told the jury members that they must rely on their memories.  But appellant did not object at the time that the district court responded to the jury’s question.

A district court has broad discretion when determining whether to allow jurors to review testimony during deliberations.  State v. Lane, 582 N.W.2d 256, 259 (Minn. 1998).  Allowing the jury to review Vollbrecht’s testimony could have given the testimony undue prominence.  See id. at 260 (upholding a district court’s decision not to allow jury to review testimony in part on the belief that the rereading of requested testimony would give it undue prominence).  And a defendant’s failure to object to a district court’s handling of the question from the jury usually waives the right to appeal the issue.  State v. McMorris, 373 N.W.2d 593, 595 (Minn. 1985).  Because appellant failed to object and because the district court had the discretion to deny the jury’s request when the review of testimony could give it undue prominence, the district court did not abuse its discretion by denying the request.

D.        Alleged discovery violations

            Appellant alleges that the state violated the rules of discovery under Minn. R. Crim. P. 9.01 by failing to produce 911-call transcripts, a police work order on the squad car used to transport appellant to the police station, and the names and addresses of the state’s lay witnesses so that he could do a background check for purposes of a credibility challenge on cross-examination.  But the record does not support appellant’s claim.  At trial, appellant’s attorney stated on the record that he had received all discovery from the state, and the prosecutor noted that she had received a request from appellant that day to run criminal background checks on the three lay witnesses.  The prosecutor stated that she had run the checks, they showed no convictions, and she shared this information with the defense. 

            Affirmed.