This opinion will be unpublished and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

A05-2443

 

In the Matter of the Welfare of:

 

B.U.P.

 

Filed ­­­December 12, 2006

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. J9-05-55495

 

Leonardo Castro, 4th District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant B.U.P.)

 

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 Sixth Street, Minneapolis, MN 55487 (for respondent State of Minnesota)

 

            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

 

DIETZEN, Judge

 

            In this extended jurisdiction juvenile (EJJ) proceeding, appellant challenges an adjudication of delinquency based on his conviction of aiding and abetting first-degree aggravated robbery, arguing that the district court erred (1) in denying his motion to suppress his statement to the police; (2) in giving an erroneous jury instruction; (3) by allowing prosecutorial misconduct during the closing argument; and (4) because the evidence was insufficient to support the conviction.  We conclude that the district court properly applied the law and did not abuse its discretion and, therefore, we affirm.

FACTS

            In April 2005, Minneapolis police officers responded to a report of a robbery near the intersection of 38th Street and 24th Avenue.  The victim, R.D., who was interviewed by Officer Nathan Ewalt at a nearby convenience store, stated that four juveniles wearing red and black clothes had robbed him.  When the officers pursued a group of juveniles that they had seen on their way to the store, the group scattered and ran.  After circling the block, the officers spotted three juveniles whom they apprehended.

            The police returned to the convenience store with T.M., R.P., and appellant B.U.P.  At that time, R.D. spotted two other individuals, M.G. and N.H., whom he believed were also part of the robbery.  Those individuals were also brought to the convenience store.  The officers then went out into the neighborhood and returned some ten minutes later with six or seven young men and conducted an on-scene show up.  R.D. identified appellant and three other individuals as those involved in the robbery. 

            All but one[1] of the original group of five juveniles were arrested and booked into the juvenile detention center.  Sgt. Calvin Pulphus interviewed appellant, which was recorded on audiotape.  Pulphus began the interview by asking appellant some basic
background questions about himself, his family, and his school, but nothing relating to the incident.  Pulphus then read appellant his Miranda rights and had appellant articulate to him the meaning of each clause of the Miranda warning.  The interview lasted approximately 20 minutes.

Before trial, appellant moved to suppress the results of the interview on the basis that his waiver of his Miranda rights was not knowingly, voluntarily, and intelligently made.  Following the hearing, the district court denied the motion to suppress. 

            At trial, R.D. testified that one of the juveniles rode by him on his bicycle and knocked his hat off.  R.D. testified that the group, which included appellant, surrounded him.  One of the other juveniles demanded R.D.’s necklace and brandished a small pocket knife.  R.D. then gave the juvenile the necklace and walked away, but the group followed him down the street.  The juvenile then demanded and took R.D.’s iPod music player and his money, which was about $3, but then returned the music player.  R.D. testified that appellant did not do any of the talking during the robbery, but that appellant did not object to, discourage, or leave the scene of the robbery.  R.D. testified that it appeared to him the four juveniles were acting in concert.

            Sgt. Pulphus testified regarding R.D.’s identification of the four juveniles, which included appellant, and his interview of appellant.  He also stated that appellant gave him three different versions of the events surrounding the alleged robbery and admitted to him that he did nothing to stop it.

            Appellant testified that he was with two of his “adopted brothers” near the light-rail platform when they saw R.D. get off the train.  He admitted that the original plan was to “mess with him,” “hassle him,” and take his hat, but denied knowing that one of the juveniles had a knife or intended to rob R.D.  When the four juveniles saw police cars, he admitted that they split up and fled to avoid capture.  Appellant stated that he fled because he knew they had done something wrong. 

            During closing argument, the prosecutor stated:  “Consider what the defendant did, consider what he failed to do; he failed to leave; he failed to render any assistance or ask if the victim needed any assistance.”  Defense counsel objected to this statement on the basis that appellant had no legal obligation to assist the victim, but the objection was overruled.

            On the issue of accomplice liability, the district court gave a lengthy instruction to the jury which included the following:

Now, in order to aid and abet another to commit a crime, it is necessary that the defendant willfully participate in it as he would in something that he wishes to bring about.  It is to say that he willfully seek by some act or omission of his to make the criminal venture succeed.  While the defendant’s participation in the crime must be more than mere inaction or passive approval, it is proper for you to consider the defendant’s passive conduct in connection with other circumstances in determining whether the defendant by his presence intended to aid and abet another in committing the offense.  Mere presence at the scene of a crime without the intent to promote or facilitate the commission of the crime is not in itself enough to make a person legally responsible for the conduct of another.  However, a person’s mere presence can be sufficient to impose liability if it is intended to and somehow does aid the commission of the crime.

 

            Following trial, appellant was adjudicated delinquent on one count of aiding and abetting aggravated robbery under Minn. Stat. §§  609.05, .245, subd. 1 (2004), and was sentenced to 48 months, which was stayed until appellant’s 21st birthday, subject to appellant remaining under EJJ probation supervision until the age of 21.  This appeal followed.

D E C I S I O N

I.  

            Appellant argues that his custodial interrogation by Sgt. Pulphus violated his Miranda rights, that his waiver of those rights was involuntary, and that the district court erred by denying his motion to suppress the results of that interrogation.  “In cases in which the claim is made that a confession was involuntary or that the waiver of the Miranda rights was involuntary, the trial court must make a subjective factual inquiry into all the circumstances surrounding the giving of the statement.”  State v. Hardimon, 310 N.W.2d 564, 567 (Minn. 1981).  “On appeal this court will not reverse any findings of fact unless they are clearly in error, but this court will make an independent determination of voluntariness on the facts as found.”  Id.  We review the legal conclusions based on those facts de novo to determine whether the state has shown by a preponderance of the evidence that the suspect’s waiver was knowing, intelligent, and voluntary.  State v. Burrell, 697 N.W.2d 579, 591 (Minn. 2005).

The United States and Minnesota constitutions protect a person against compelled self-incrimination. U.S. Const. amend. V; Minn. Const. art. I, § 7.  Because of the coercion inherent in custodial interrogations, a suspect must be “warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that the he has a right to the presence of an attorney, either retained or appointed.”  Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).  To admit a statement taken from a defendant during custodial interrogation, the state must prove: (1) that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights; and (2) that the defendant gave his statement voluntarily.  State v. Dominguez-Ramirez, 563 N.W.2d 245, 252 (Minn. 1997); State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995).  To independently determine whether a statement was involuntary or coerced, a reviewing court considers all relevant factors including age, maturity, intelligence, education, experience, ability to comprehend, length and legality of detention, nature of interrogation, physical deprivations, and limits on access to counsel and friends.  State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999).

Appellant admits that he waived his Miranda rights, but argues that his waiver was involuntary because his parent was not present.  The presence of a juvenile’s parent is one of the circumstances that may affect the validity of a Miranda waiver.  Burrell, 697 N.W.2d at 595-96.  But there is no per se rule requiring a parent’s presence before a juvenile waives his Miranda rights.  Id. at 597.  The main reason to examine a minor’s request for a parent’s presence during custodial interrogation is because it may be an invocation of the right to remain silent.  Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 2572 (1979).

The district court found that Sgt. Pulphus made efforts to facilitate contact with appellant’s mother, but appellant did not pursue the opportunity.  The record supports the district court.  Appellant did not give Sgt. Pulphus his mother’s cell phone number and did not request that his mother be contacted.  And Sgt. Pulphus made no attempt to dissuade or discourage appellant from contacting his parents.  

Appellant next argues that Sgt. Pulphus’s need to repeat the Miranda warning to appellant demonstrated appellant’s lack of understanding of its contents, rendering the waiver invalid.  The district court found that Sgt. Pulphus’s explanation of appellant’s Miranda rights was “certainly adequate.”  A review of the relevant portions of the interview transcript demonstrates that Sgt. Pulphus gave simple explanations and clarifications of Miranda, and appellant repeatedly assented without asking for clarifications.  On this record, there is no evidence that appellant did not understand the principles of Miranda, or that his waiver was voluntary.

Appellant next argues that Sgt. Pulphus failed to warn him that he may face prosecution as an adult, rendering his Miranda waiver involuntary.  In Burrell, the Minnesota Supreme Court stated that there is “heightened concern” that a defendant understands his Miranda rights when he may be tried as an adult for a crime.  697 N.W.2d at 591.  But the Burrell court noted that knowledge that one may be tried as an adult may be imputed to a defendant based on the seriousness of the crime, as well other factors such as the presence of numerous police squad cars and handcuffs.  Id. at 592.

Here, Sgt. Pulphus’s statement to appellant that he was investigating an aggravated robbery, and the district court’s finding that appellant was of “sound mind” and “seemed intelligent” is sufficient to impute knowledge of his potential to be tried as an adult.  Appellant also argues that Sgt. Pulphus coerced him into making incriminating statements, because he implied that he would intervene on his behalf to the county attorney.  But the transcript shows that any statements made by Sgt. Pulphus implying he would come to appellant’s assistance were made after the interrogation was completed.

Finally, appellant argues that the district court erred by not requiring the state to introduce the Scales transcript of the police interview.  See State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (holding that “all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention”).  But appellant failed to raise this issue before the district court and, therefore, we do not need to consider it for the first time on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

Even if we were to consider it, appellant’s argument lacks merit.  Appellant complains Sgt. Pulphus’s testimony was inconsistent with the transcript of the interview.  But appellant failed to either introduce the transcript or cross-examine Sgt. Pulphus regarding its contents.  And the state is not required to introduce a tape or transcript of the interview.  See State v. Bauer, 598 N.W.2d 352, 368 (Minn. 1999) (holding that the state is not required by operation of the best-evidence rule, Minn. R. Evid. 1002, to introduce any part of the recordings of a defendant’s statements heard by police when police testify as to the interviews).

II.

            Appellant argues that the district court misstated the law in its jury instructions on accomplice liability as to the amount of presence and activity required by law to convict under the aiding and abetting statute, Minn. Stat. § 609.05, subd. 1 (2004).  In general, 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).  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  “An instruction is in error if it materially misstates the law.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).

            Minn. Stat. § 609.05, subd. 1 states that “[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.”  Inaction, mere knowledge, or passive acquiescence does not satisfy the requirements for accomplice liability.  State v. Arrendondo, 531 N.W.2d 841, 845 (Minn. 1995).  Mere presence at or near the scene of a crime must be shown beyond a reasonable doubt to have intentionally aided or promoted the crime which was committed.  State v. Gruber, 264 N.W.2d 812, 819 (Minn. 1978). However, presence, companionship, and conduct before and after an offense occurred are circumstances from which person’s criminal intent may be inferred.  State v. Parker, 282 Minn. 343, 355, 164 N.W.2d 633, 641 (1969).  

Here, the jury instruction included the relevant statutory language, as well as an overview of the appropriate case law to supplement the jury’s understanding of what constitutes “aiding and abetting.”  The jury instruction also followed the JIG and incorporated the necessary elements of the statutory language and the case law.  While the jury instruction was lengthy, we conclude that there was no material misstatement of the law warranting reversal.

III.

Appellant argues that the prosecutor engaged in misconduct during closing argument which deprived him of a fair trial.  In the case of unobjected-to-misconduct, we review for plain error, which requires that there be (1) error; (2) that is plain; and (3) the error must affect substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  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 process.  Id. 

Recently, the Minnesota Supreme Court reviewed existing caselaw regarding prosecutorial misconduct and concluded that “appellate courts should use the plain error doctrine when examining unobjected-to prosecutorial misconduct.”  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). 

In Ramey, the supreme court concluded “the burden should be on the prosecution to show lack of prejudice before we will affirm a conviction.”  Id. at 301-02.  Thus, the burden continues to be on the non-objecting defendant to demonstrate both that error occurred and the error is plain, but once those two elements are satisfied, the burden then shifts to the state to demonstrate lack of prejudice, that is, that the misconduct did not affect substantial rights.  Id. at 302. 

In the case of objected-to-misconduct, we review for an abuse of discretion.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  Or put in a different way, we apply the harmless-beyond-a-reasonable-doubt standard, under which the verdict must be “surely unattributable” to the error, which is the same for all types of misconduct.  State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006).

            Appellant argues that the prosecutor committed misconduct by stating: “Consider what the defendant did, consider what he failed to do; he failed to leave, he failed to render any assistance or ask if the victim needed any assistance.” Appellant objected, arguing that appellant had no legal obligation to intervene on behalf of the victim, but the district court overruled the objection. A jury may consider a defendant’s inaction as a relevant circumstance from which criminal intent may be inferred.  Parker, 282 Minn. at 355, 164 N.W.2d at 641.  Here, the prosecutor asked the jury to consider what appellant failed to do at the crime scene as evidence of his criminal intent.  On this record, we conclude that the prosecutor’s argument did not misstate the law.

Appellant next raises four other instances of alleged misconduct.  Because appellant did not object to any of these instances of alleged misconduct, the Ramey plain-error analysis applies.  Appellant argues that the prosecutor’s argument that “justice requires a guilty verdict” was impermissible.  But the prosecutor was merely stating what he believed justice required.  See State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996) (stating that asking a jury to “seek justice” was not improper, and is actually a duty of the prosecutor).  Thus, the prosecutor’s statement was not improper or plain error.

Appellant argues that the prosecutor misstated the facts from appellant’s police interview with Sgt. Pulphus during his closing argument.  But this argument relies on evidence outside of the trial court record.  Thus, the prosecutor’s argument was not improper and not plain error.

Next, appellant argues that the prosecutor impermissibly elicited undue sympathy by stating: “[victim] should have the right to walk down a street in South Minneapolis on the way to the store without being jostled, without being surrounded, without being threatened, without being robbed.”  Generally, it is improper to appeal to the passions and prejudices of the jury by encouraging a conviction based on sympathy for the victim.  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).  But the prosecutor is not required to present arguments totally devoid of color.  Atkins, 543 N.W.2d at 648.  Here, the prosecutor’s statements do not rise to the level of misconduct.

Finally, appellant argues that the prosecutor impermissibly made a pact with the jury.  A “pact” with the jury implying it has an obligation to convict constitutes prosecutorial misconduct.  State v. Jones, 277 Minn. 174, 188-89, 152 N.W.2d 67, 77-78 (1967).  Here, the prosecutor merely stated that if he has proved his case beyond a reasonable doubt, then the jurors are required by their oath to convict.  On this record, the prosecutor’s statement was not misconduct or plain error.  

IV.

Appellant argues that the evidence is not sufficient to support his conviction of aiding and abetting aggravated robbery.  When reviewing a sufficiency of the evidence claim, this court reviews the record in the light most favorable to the state and determines whether the facts and any legitimate inferences from the evidence there from reasonably support the jury’s verdict. State v. Race, 383 N.W.2d 656, 661 (Minn. 1986).  The choice between conflicting stories, and the determination of credibility of any witnesses, lies with the jury.  State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984).  But the reviewing court must assume 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).

Under the aiding and abetting statute, Minn. Stat. § 609.05, subd. 1, “[j]urors can infer the necessary [criminal] intent from factors including: ‘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 of the crime with the principal.’”  State v. Swanson, 707 N.W.2d 645, 659 (Minn. 2006) (quoting State v. Pierson, 530 N.W.2d 784, 788 (Minn. 1995)).

Appellant argues that his mere presence at the crime scene is not sufficient, and cites State v. Ulvinen in support of his position.  313 N.W.2d 425 (Minn. 1981).  In Ulvinen, the court held that the accomplice liability statute (Minn. Stat. § 609.05, subd. 1) “implies a high level of activity on the part of an aider and abettor.”  Id. at 428.  The Ulvinen court reasoned that although defendant stood guard by the bathroom door to ensure her son was not discovered by his children dismembering his wife’s body, defendant was not present during the commission of the crime, and thus, could not possess the criminal intent to aid and abet the murder.  Id. Here, appellant was present during the commission of the crime.  Thus, Ulvinen is factually distinguishable.

Here, like Swanson, the evidence considered in the light most favorable to the verdict supports the conclusion that appellant (1) intended to “mess with” and “hassle” the victim and take his hat; (2) helped “surround” the victim; (3) did not object to the robbery, or try to thwart it or leave the scene; (4) had a close personal relationship with the other participants and rejoined them after the crime; and (5) when confronted, ran from police.  Swanson, 707 N.W.2d at 659.  Thus, the factual evidence presented in this
case is similar to the Pierson factors for criminal intent outlined by the supreme court in Swanson.

            Affirmed.