This opinion will be unpublished and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

A05-2008

 

State of Minnesota,

Respondent,

 

vs.

 

Moses Lee Crew,

Appellant.

 

Filed December 19, 2006

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. K6-05-779

 

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

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

Bradford Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Moses Lee Crew challenges his conviction of aggravated robbery in the second degree arguing that:  (1) the evidence was not sufficient to support the conviction; (2) the district court failed to instruct the jury on lesser-included offenses; and (3) the district court erred in allowing Spreigl evidence.  We affirm.

D E CI S I O N

I.

            For a claim of insufficiency of the evidence, “our review on appeal 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 which they did.”  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary, especially where resolution of the matter depends on conflicting testimony.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  “We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that [a] defendant was proven guilty of the offense charged.”  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted). 

            In February 2005, appellant entered a grocery store, put three bags of frozen shrimp inside his coat, and left the store without paying.  When store clerks chased him into the parking lot, appellant swung a bag of shrimp at them.  After that bag fell to the ground, appellant called to his brother to “get the pistol.”  The clerks, who did not see a pistol, allowed appellant to leave the scene. 

            Appellant argues that he was no longer “taking or carrying away” the shrimp at the time he allegedly called for the pistol and therefore cannot be convicted of second-degree aggravated robbery.  See Minn. Stat. § 609.245, subd. 2 (2004).  We disagree.

            A defendant is guilty of simple robbery if he,

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 (2004).  The simple robbery is elevated to aggravated second-degree robbery if the defendant, “implies, by word or act, possession of a dangerous weapon” while committing a robbery.  Minn. Stat. § 609.245, subd. 2; see also In re Charges of Unprofessional Conduct Contained in Panel File 98-26, 597 N.W.2d 563, 565 (Minn. 1999) (stating that for second-degree aggravated robbery, the person must have committed robbery while implying that he possessed a dangerous weapon and using or threatening the imminent use of force). 

            Here, appellant does not challenge whether he was guilty of simple robbery, but only whether he was guilty of aggravated robbery.  Appellant contends that because he was no longer “taking or carrying away” the shrimp when he implied that he had a dangerous weapon, he did not imply he had a dangerous weapon while committing a robbery.

            Appellant’s argument requires that we conclude that the robbery was complete when the bag of shrimp fell to the ground.  But unrebutted evidence was presented that, although one bag of shrimp had fallen to the ground, appellant still carried two bags in his jacket.  Assuming, as we must, that the jury believed this evidence, appellant was still in possession of two bags of stolen shrimp and still in the act of taking or carrying away the shrimp when he called to his brother to “get the pistol.” 

Moreover, even if appellant had dropped all the shrimp, we cannot say that the robbery was complete or that enough time had passed to separate the robbery and the statement.  This court has concluded that the evidence is sufficient to sustain a robbery conviction when the victim immediately chases the defendant to stop him from carrying away the property, and the defendant then uses force against the victim.  See, e.g., State v. Brown, 597 N.W.2d 299, 304 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999); State v. Burrell, 506 N.W.2d 34, 36 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).  Similarly, if a defendant halts the victim’s immediate chase by implying he has a dangerous weapon, the temporal relationship between the simple robbery and the statement is sufficient to sustain a robbery conviction. 

On these facts, a jury could reasonably conclude that appellant implied possession of a dangerous weapon while taking or carrying away the shrimp and that the statement was intended to overcome the victims’ continued resistance to the robbery.  Thus, we conclude that the evidence is sufficient to sustain the conviction of second-degree robbery.

II.

            The analysis for determining whether to submit a jury instruction on lesser-included offenses differs depending on whether the complaining party requested the instruction.  See Minn. R. Crim. P. 26.03, subd. 18(3).  See generally State v. Dahlin, 695 N.W.2d 588 (Minn. 2005) (explaining both analyses).  Where a party fails to request a lesser-included offense instruction at trial, it impliedly waives its right to receive the instruction.  Minn. R. Crim. P. 26.03, subd. 18(3); Dahlin, 695 N.W.2d at 597-98.  “Even when a defendant has expressly or impliedly waived a jury instruction, a trial court may, in its discretion, ignore the waiver and give any instructions warranted by the evidence.”  Dahlin, 695 N.W.2d at 598. 

            Appellant did not request a lesser-included-offenses instruction but argues that the district court abused its discretion by failing to issue such an instruction.  Appellant contends that even though the defense sought an all-or-nothing verdict, the district court owed a duty to the jury to instruct them of their authority to convict appellant of a lesser-included offense.  We disagree.

            First, because this objection was not raised below, we need not address it here.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  But even if we address the issue, under Minnesota law an appellant who impliedly waives a jury instruction relies on the discretion of the court whether to include it.  Dahlin, 695 N.W.2d at 598.  “[A]bsent 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 or expressly waived that instruction.”  Id. (citation omitted).  Here, appellant did not request a lesser-included offense instruction and thereby impliedly waived his right to receive it.  We conclude there is no plain error and that the district court did not abuse its discretion. 

III.

            Evidentiary rulings rest within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion.  Bernhardt, 684 N.W.2d at 474.  On appeal, appellant has the burden of establishing that the district court abused its discretion and that appellant was thereby prejudiced.  Id.

            Appellant contends that the district court abused its discretion by admitting Spreigl evidence of a prior robbery.  Evidence of other crimes or bad acts is characterized as “Spreigl evidence.”  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  Generally, Spreigl evidence is not admissible to prove that a criminal defendant acted in conformity with his character.  Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 490, 495-96, 139 N.W.2d 167, 169, 171-72 (1965).  But the evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Minn. R. Evid. 404(b); Spreigl, 272 Minn. at 491, 139 N.W.2d at 169. 

            Before admitting Spreigl evidence, the district court must first determine that (1) the state gave notice of its intent to admit the evidence; (2) the state clearly indicated what it would offer the evidence to prove; (3) there is clear and convincing evidence that the defendant participated in the prior act; (4) the evidence is relevant and material to the state’s case; and (5) the evidence’s probative value must outweigh any prejudice to the defendant.  Angus v. State, 695 N.W.2d 109, 119 (Minn. 2005).  “When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded.”  Kennedy, 585 N.W.2d at 389.

            The district court allowed the state to offer evidence of an earlier robbery to which appellant pleaded guilty.  Although the earlier conviction was for simple robbery, appellant had admitted to a police officer that he had threatened the victim with a box cutter. 

            Appellant challenges whether the evidence was admitted for a proper purpose.  The record reflects that the district court admitted the Spreigl evidence for the limited purpose of establishing a modus operandi and that the district court gave a limiting instruction before admitting the Spreigl evidence, and again in its final instructions to the jury. 

            Appellant argues that the Spreigl evidence was admitted for an improper purpose because the prior offense was not sufficiently similar to the present charge to establish a common plan or scheme.  Appellant notes that the supreme court has recently emphasized the narrow breadth of allowable modus operandi Spreigl evidence, explaining that the evidence must have a “marked similarity in modus operandi to the charged offense.”  State v. Ness, 707 N.W.2d 676, 688 (Minn. 2006).  Here, the district court did not have the benefit of the Ness analysis when it rendered its decision.  But the district court properly addressed similarities between the two incidents, stating that “there are similarities.  There’s a threat of force.  There’s a female driver.  His brother was involved.  And the obvious threat to have somebody acquiesce to theft.  It is relevant for that reason.  And it is not an old case.  It’s only from 2000.”  Furthermore, the district court allowed only one of three past acts to be used by the prosecution.  On this record, we cannot conclude that the district court clearly erred.

            Importantly, we conclude that even if the district court erred by admitting the Spreigl evidence, on this record the error was harmless.  Upon examination of the entire district court record, we conclude that there is “no reasonable possibility” that the allegedly wrongfully admitted evidence “significantly affected the verdict.”  State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995).  Here, an eyewitness testified that appellant stole property and yelled “get the pistol” to his brother while trying to flee.  See Moore, 438 N.W.2d at 108 (holding determination of witness credibility is exclusively the duty of the jury).  In addition, the court gave proper limiting instructions both before and after the evidence was presented, as well as in its jury instructions.  Thus, we conclude that any error by the district court in allowing the Spreigl evidence was harmless.

            Affirmed.