This opinion will be unpublished and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

A05-1884

 

 

State of Minnesota,

Respondent,

 

vs.

 

Bobby L. Maxwell,

Appellant.

 

 

Filed November 28, 2006

Affirmed

Halbrooks, Judge

 

 

Ramsey County District Court

File No. K2-04-3913

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Patrick J. Swift, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

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

 

 

            Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, 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 attempted first-degree aggravated robbery, arguing that (1) the district court erred by failing to instruct the jury that it could not convict appellant unless it found evidence corroborating the testimony of appellant’s accomplice, (2) the district court erred by refusing to instruct the jury on the requested lesser-included offenses, and (3) the evidence was not sufficient to allow the jury to conclude that he committed attempted first-degree aggravated robbery.  We affirm. 

FACTS

            At approximately 1:20 p.m. on October 11, 2004, appellant Bobby Lee Maxwell entered the Express Mart on Stillwater Avenue in St. Paul.  Appellant approached Shirley Miller, a store clerk who was working behind the counter, and asked Miller if he could use the bathroom.  When Miller told appellant that the bathroom was out of order, appellant walked out of the store. 

            Because the doors to the store were propped open, Miller could hear appellant talking to another person outside the store.  But Miller was unable to see who appellant was talking to.  While Miller was looking out the window, with her back to the counter, Howard Wilder entered the store.  Miller heard someone behind her say, “Open the safe.”  Miller turned and saw both appellant and Wilder.  Wilder was standing closer to Miller, holding a metal object covered with a white towel.  Appellant was standing near the other register behind Brandon Spears, another store clerk.  Spears testified that he could feel a cold metal object pressed against the small of his back. 

Miller testified that the men demanded about five times that she open the safe.  Appellant later admitted to St. Paul Police Officer Susan Jones that he told Spears and Miller to give Wilder the money in the safe because Wilder was “crazy.”  Miller told the men that she did not have a key for the safe but that she could open the register.  Spears told Miller not to open the register. 

            Steven Haw, a co-owner of Express Mart, was present and also saw appellant and Wilder going in and out of the store.  Haw was suspicious of the men and thought that they were going to rob the store.  When Haw entered the store, appellant moved toward Haw and swung something at him.  At the same time, Spears and Wilder got into a scuffle.  Wilder hit Spears in the forehead with a tire iron, causing a laceration and bleeding.  Spears grabbed the tire iron away from Wilder.

            Appellant and Wilder ran out of the store.  Haw ran after them, stopping first at co-owner Ken Jednick’s car to tell Jednick that they were being robbed.  Haw then chased appellant and Wilder down the alley to a silver car that was parked near the end of the alley.  Both appellant and Wilder got into the car.  When Jednick drove down the alley, Haw told Jednick to chase the car while Haw returned to the store and waited for the police and medical assistance for Spears to arrive. 

            Jednick followed the silver car and later testified that there were two black males in the front seat.  The car stopped in the middle of the block in the area of Fifth and Kennard, and both men got out of the car and ran in separate directions.  Jednick called the police on his cell phone while remaining in his car. 

            Dorrian Guy and his wife were returning to their home when Guy’s wife noticed a man under a tree in their backyard.  Guy told his wife to call the police.  Guy approached the man, whom Guy later identified as appellant, and asked appellant what he was doing there.  Appellant responded that he was trying to find a place to sleep and that Guy should not worry about him.  Guy tried to persuade appellant to leave, but appellant refused.  Guy then picked up a stick and threatened to hit appellant if he did not leave.  Appellant got up, but did not leave Guy’s yard, and instead went to a different tree.  Guy yelled at appellant to leave.  Appellant admitted to Guy that he and Wilder had been “robbing people,” but stated that Guy should not worry because “his buddy had the gun.” 

            Ramsey County Deputy Bruce Jerome responded to the area of Fifth and Kennard.  When he arrived, Deputy Jerome saw appellant lying on the boulevard beside the curb.  Appellant was groaning, claiming that he was having a heart attack.  Officer Jerome called for paramedics, checked appellant for weapons, and handcuffed him.  Appellant told Officer Jerome that he did not “know the other guy was going in to rob the store.”  Paramedics arrived and examined appellant but found no medical problems.  Officer Jerome found a rolled-up white shirt on the ground next to where appellant had been lying.  When Officer Jones later unrolled the t-shirt at the law-enforcement center, a black knit cap fell out.  The cap had been cut horizontally to make an opening in it.    

            Officer Jones placed appellant in his squad car.  Appellant continued to make moaning noises, and Officer Jones noticed that appellant had urinated on himself.  Appellant told Officer Jones that he “didn’t do it.  I didn’t pop nobody.”  Appellant later testified that he urinated on himself because Wilder had been “driving like crazy.” 

            Spears and Haw were brought to Officer Jones’s squad car, and both identified appellant as having been one of the men in Express Mart.  Officer Jones then transported appellant to the law-enforcement center.  Appellant informed Officer Jones that he knew the other man as “Greasy,” but that he did not know the man’s actual name.  When Officer Jones ran a computer check for “Greasy,” he got the name of Howard Wilder.  Officer Jones then printed a booking photo of Wilder, whom appellant immediately identified as the man who had robbed the store.  

Howard Wilder was a witness for the state at appellant’s trial.  Wilder testified that he and appellant had been together the night before and the afternoon of the incident, getting high on crack cocaine.  Wilder stated that when he and appellant ran out of money and drugs, they decided to rob a store so that they could buy more drugs.  

            According to Wilder, he entered the store first, to case the store.  Wilder stated that he saw only Spears, not Miller or the owners.  So he left the store and reported to appellant that there was just one person and that they could “handle it.”  Wilder testified that he had a crowbar, which he covered up with a white towel in an attempt to make it look like a gun.  Wilder stated that he walked up to Miller and Spears and demanded money.  According to Wilder, another person came in and tried to grab appellant, but appellant pushed the person away and ran out of the store.  Wilder stated that he hit Spears with the crowbar and then fled.  Wilder ran to appellant’s car, which was running, and jumped into the driver’s seat.  Appellant got in the other side.  Wilder testified that, as they were driving away, the car “just cut out.”  At that point, Wilder jumped out and ran, but he did not know what happened to appellant.    

Appellant was charged with aiding and abetting attempted first-degree aggravated robbery in violation of Minn. Stat. §§ 609.245, subd. 1; .17, subd. 1; .05, subd. 1; and .11 (2004).  Following trial, the jury found appellant guilty of attempted first-degree aggravated robbery.  Appellant was sentenced to an executed prison term of 51 months.  This appeal follows.

D E C I S I O N

I.

 

            Although appellant did not request an accomplice instruction, appellant now argues that he is entitled to a new trial because the district court failed to instruct the jury that it could not convict appellant unless it found evidence corroborating the testimony of appellant’s accomplice.  Respondent concedes that the district court should have given an accomplice instruction.  A defendant’s conviction may not be based solely on uncorroborated accomplice testimony.  Minn. Stat. § 634.04 (2004).[1]  Consequently, “[a]n accomplice instruction ‘must be given in any criminal case in which any witness against the defendant might reasonably be considered an accomplice to the crime.’”  State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004) (quoting State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989)).  “The duty to instruct on accomplice testimony remains regardless of whether counsel for the defendant requests the instruction.”  Id. (citing State v. Strommen, 648 N.W.2d 681, 689 (Minn. 2002)).    

To determine if a witness is an accomplice, this court considers whether the witness could have been indicted and convicted for the same crime that the accused is charged with committing.  Id. at 314; State v. Pippitt, 645 N.W.2d 87, 93 (Minn. 2002).  Where a witness is an accomplice and no jury instruction was given, this court will “evaluate the erroneous omission of [the] jury instruction under a harmless error analysis.”  Lee,683 N.W.2dat 316.  Under a harmless-error analysis, this court must examine the record and all relevant factors.  Shoop, 441 N.W.2d at 481.  “[A] new trial is required if the error is deemed prejudicial, but is not required if the error is deemed harmless.”  Id. at 480. 

If the erroneous omission of the instruction “might have prompted the jury, which is presumed to be reasonable, to reach a harsher verdict than it might have otherwise reached, defendant must be awarded a new trial.”  . . .  If, however, beyond a reasonable doubt “the omission did not have a significant impact on the verdict, reversal is not warranted.”

 

Lee, 683 N.W.2d at 316 (quoting Shoop, 441 N.W.2d at 481). 

Here, Wilder, who testified against appellant at trial, is an accomplice for purposes of Minn. Stat. § 634.04.  Wilder pleaded guilty to and was sentenced for attempted aggravated robbery, the same charge that appellant was being tried on.  In addition, the evidence presented at trial showed that appellant and Wilder were together at the time the crime was committed.  Thus, Wilder is an accomplice, and the district court should have given the jury the accomplice instruction.       

Because Wilder is an accomplice and the district court should have given an accomplice instruction, we must decide whether the district court’s “error is amenable to the harmless error analysis.”  Shoop, 441 N.W.2d at 479.  “Corroborative evidence supporting the testimony of an accomplice must be ‘weighty enough to restore confidence in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some substantial way.’”  State v. Hooper, 620 N.W.2d 31, 39 (Minn. 2000) (quoting State v. Norris, 428 N.W.2d 61, 66-67 (Minn. 1988)).  This court views corroborative evidence in the light most favorable to the verdict and does not require it to establish a prima facie case of guilt.  State v. Johnson, 616 N.W.2d 720, 727 (Minn. 2000).  Moreover, any inconsistency in the evidence is resolved in favor of the state.  State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990).  “It is not necessary that [an accomplice’s] testimony be corroborated on every point or element of the crime.”  State v. Lemire, 315 N.W.2d 606, 610 (Minn. 1982).  Corroborating evidence may include physical evidence of the crime, trial testimony of eyewitnesses and experts, suspicious and unexplained conduct of the accused both before or after the crime, “defendant’s association with those involved in the crime in such a way as to suggest joint participation,” and “defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed.”  State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000) (citations and quotation omitted).

            Appellant argues that, absent Wilder’s testimony, there was little evidence presented at trial that linked appellant to the crime.  Appellant contends that the witnesses who testified assumed that appellant was involved, while the evidence merely confirms that appellant was in the wrong place at the wrong time.  But the record contains ample evidence that connects appellant to the crime and provides corroboration of Wilder’s testimony.

            For instance, Shirley Miller testified that when appellant left the convenience store after asking to use the bathroom, she heard people conversing outside.  Miller also testified that both men demanded that she open the safe.  In addition, the record indicates that, once inside the store, appellant walked behind the counter of the store near a register, to a position behind Brandon Spears.  Spears testified that when appellant was standing behind him, he felt a cold metal object pressing against his back.  Moreover, appellant himself admitted to both Officer Jones and St. Paul Police Sergeant Frederick Gray that he yelled at the store clerks to give Wilder the money.  And Dorrian Guy testified that appellant stated, while lying in Guy’s yard, that he and Wilder had been “robbing people.”  Finally, the evidence presented at trial showed that appellant fled the scene in a car with Wilder after the attempted robbery. 

            This testimony was significant independent evidence that corroborated Wilder’s testimony and linked appellant to the crime.  Because we conclude that the omission of the accomplice instruction by the district court did not have a significant impact on the verdict beyond a reasonable doubt, the omission constitutes harmless error.  Therefore, appellant’s request for a new trial on this ground is denied. 

II.

 

            Appellant also argues that he is entitled to a new trial because the district court declined to instruct the jury on the lesser-included offenses of attempted theft from person, attempted simple robbery, and attempted second-degree robbery.  “It is well established in our jurisprudence that we 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).  “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.”  Bellecourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted).  In addition, “the failure to submit lesser-included offenses to the jury is grounds for reversal only if the defendant is prejudiced thereby.”  Dahlin, 695 N.W.2d at 597 (internal quotation omitted).  When determining if the defendant was prejudiced by the failure to give the instruction, “appellate courts should consider the instructions actually given and the verdict rendered by the jury.”  Id. at 599.      

An instruction regarding lesser-included offenses must be given by the trial court 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.”  Id.at 598.  Further, “trial courts must look at the evidence in the light most favorable to the party requesting the instruction when determining whether a lesser-included offense instruction is warranted.”  Id.  When a defendant requests an instruction on a lesser-included offense and the district court examines whether there is evidence to warrant giving it, the district court may not weigh the evidence or determine the credibility of the witnesses.  Id.  “When an appellate court determines that a requested lesser-included offense instruction was warranted by the evidence, and the denial of that instruction prejudiced the defendant, reversal is required.”  Id. at 599. 

First, this court must determine whether the lesser offenses of attempted theft from person, attempted simple robbery, and attempted second-degree robbery are necessarily included in the charged offense of attempted first-degree aggravated robbery.  Appellant was convicted of violating Minn. Stat. § 609.245, subd. 1, which provides that

[w]hoever, while committing a robbery, 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, or inflicts bodily harm upon another, is guilty of aggravated robbery in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both.

  

Under Minn. Stat. § 609.04, subd. 1 (2004), a defendant “may be convicted of either the crime charged or an included offense, but not both.”  An included offense includes a lesser degree of the same crime.  Minn. Stat. § 609.04, subd. 1(1).  Second-degree aggravated robbery and simple robbery are included offenses of first-degree aggravated robbery both because they are “lesser degrees” of the same offense and “because it is impossible to commit the latter without also committing the former.”  LaMere v. State, 278 N.W.2d 552, 558 (Minn. 1979); see also State v. Oksanen, 276 Minn. 103, 105-06, 149 N.W.2d 27, 29 (1967) (holding that simple robbery is a lesser-included offense of aggravated robbery).  Theft from person is also a lesser-included offense of aggravated robbery.  State v. Nunn, 351 N.W.2d 16, 19 (Minn. App. 1984).  Therefore, the requested lesser offenses are included in the charged offense here.

Second, we must determine whether the evidence provided a rational basis for acquitting appellant of the offense charged and convicting appellant of a lesser-included offense.  Appellant’s theory of the case was that he was not involved in the robbery and that Wilder acted alone.  According to appellant, he entered the store, saw Wilder pointing an object at the employees, and, out of concern for the employees, advised them to open the safe.  Consequently, the jury was asked to determine if appellant had any criminal culpability for attempted first-degree aggravated robbery; and appellant asked the jury to find that he had none.  But the presence of a dangerous weapon and the infliction of bodily harm during the incident were established by a number of key facts, including:  Wilder had a tire iron that he used in the attempted robbery; Wilder struck Spears in the head with the tire iron, causing bodily injury; appellant’s statement to Guy that he and Wilder had been “robbing people” but not to worry because “his buddy had the gun;” and Spears’s belief that appellant had an object that he pressed into Spears’s back.  Based on these facts, we conclude that the evidence, when viewed in the light most favorable to appellant, did not provide a rational basis for the jury to find that the offense was committed absent a dangerous weapon or the infliction of bodily harm. 

In addition, appellant argues that by denying his motion for a lesser-included-offense instruction, the district court abused its discretion by improperly making credibility determinations and weighing the evidence.  But based on our review of the record, we find no indication that the district court did so.  To the contrary, the district court stated that it would not instruct on any lesser-included offenses because “[i]t does not feel there is a rational basis.”

Because the evidence did not provide a rational basis for the jury to convict appellant of the proposed lesser-included offenses, we conclude that the district court did not abuse its discretion by denying appellant’s request for the instructions.

III.

 

            Appellant contends that the evidence at trial was insufficient to support appellant’s conviction of attempted first-degree aggravated robbery because he did not have the requisite specific intent to aid and abet a robbery using a dangerous weapon or resulting in bodily harm.  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 the light most favorable to the conviction was sufficient to allow 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).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  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 that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).    

            “A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”  Minn. Stat. § 609.05, subd. 1 (2004).  The intent required for an attempt to commit a crime is “the intent to commit that particular crime.”  State v. Zupetz, 322 N.W.2d 730, 735 (Minn. 1982) (emphasis omitted).  But the state is not required to show active participation in the overt act of the offense.  State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000).  Rather, a jury may infer the requisite criminal intent under Minn. Stat. § 609.05, subd. 1, when a defendant plays some knowing role in a crime and takes no steps to thwart its completion.  State v. Pierson, 530 N.W.2d 784, 788 (Minn. 1995).  “Presence, companionship, and conduct before and after the offense are circumstances from which a person’s participation in the criminal intent may be inferred.”  Id. (citing State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981)). 

If the proof shows that a person is present at the commission of a crime without disapproving or opposing it, it is competent for the jury to consider this conduct in connection with other circumstances and thereby reach the conclusion that he assented to the commission of the crime, lent to it his approval, and was thereby aiding and abetting its commission.

 

Id. (quoting State v. Parker, 282 Minn. 343, 355-56, 164 N.W.2d 633, 641 (1969)).  Factors that may support a conviction for aiding and abetting a crime include: “defendant’s presence at the scene of the crime, defendant’s close association with the principal before and after the crime, defendant’s lack of objection or surprise under the circumstances, and defendant’s flight from the scene . . . with the principal.”  Id.

            Appellant argues that the evidence was insufficient to support his conviction because it does not show that appellant had a specific intent to aid and abet attempted first-degree aggravated robbery.  We disagree.

            Appellant was present in the convenience store at the time of the crime.  The evidence was that appellant had a close association with Wilder.  Guy testified that appellant referred to Wilder as “his buddy.”  In addition, appellant stated in his post-arrest interview with St. Paul Police Sergeant Frederick Gray that Wilder was “a friend of his” and that they had been driving around together the day of the incident.  This was consistent with Wilder’s testimony that he and appellant had been together the night before and the afternoon of the incident.  And Miller testified that after appellant asked to use the bathroom and was informed that it was out of order, he left the store and was heard speaking with someone outside the store’s open door.

Further, there was no evidence that appellant objected to or was surprised by Wilder’s actions in the convenience store.  The testimony at trial indicated that upon re-entering the store, appellant moved behind the counter, an area reserved for employees only, to a position directly behind Spears.  Spears testified that he believed appellant had something under his shirt, and he felt a cold metal object pressed against his back when appellant was standing behind him.  Miller testified that both men demanded money.  And appellant admitted that when Wilder was at the counter, holding a covered metal object and demanding money, appellant yelled at the workers to give Wilder the money.  Appellant fled the scene in a car with Wilder and later told Guy that he and Wilder had been “robbing people.”  Finally, there was no evidence indicating that appellant attempted to thwart the completion of the crime. 

Thus, when viewed in the light most favorable to the conviction, the evidence was sufficient to allow the jury to infer criminal intent on the part of appellant and to convict appellant of attempted first-degree aggravated robbery.

            Affirmed.