This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1011

 

State of Minnesota,

Respondent,

 

vs.

 

Thomas Arnell Williams,

Appellant.

 

Filed September 11, 2007

Affirmed in part, reversed in part, and remanded

Shumaker, Judge

 

Hennepin County District Court

File No. 05068473

 

 

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

 

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Ave. S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Parker, Judge.*

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant Thomas Arnell Williams challenges the sufficiency of eyewitness testimony to support his conviction of aggravated robbery.  He also contends that the district court erred in imposing a sentence under the dangerous-offender statute.  Because the evidence was sufficient, we affirm the conviction.  But because the court erred in determining that appellant is a dangerous offender as defined by statute, we reverse the sentence and remand for resentencing.

FACTS

            While C.G. worked as the lone clerk at the Tobacco Warehouse in October 2005, a male customer came in and asked for cigarettes.  C.G. obtained the cigarettes and then asked the man for identification. 

The man then told C.G. to give him all of the money in the register while his actions indicated to her that he had a weapon down the front of his pants.  He raised the front of his jacket and shirt with his right hand while putting his right hand below the sales counter.  He then leaned over the counter and demanded the money from C.G. with his left hand.  Scared, and believing the man had a weapon, C.G. gave the man the money.  The man then told C.G. to turn around, walk away, and go to the store office, which she did.  Once the man had left the store, C.G. called  the police.

Sergeant Frederick D. McDonald investigated the robbery and interviewed C.G.  She described the robber as a black male, about 5’ 6” tall, with a medium build, and no facial or head hair.  She also said the robber was wearing a blue peacoat, white pants, and a baseball cap with the cursive name ‘Ray’ across the front.  Sergeant McDonald reviewed the Tobacco Warehouse surveillance tape that day, and he suspected that appellant, Thomas Arnell Williams, was the robber.

A few days later Sergeant McDonald returned to the Tobacco Warehouse to show C.G. a photo line-up of six men matching the description she gave of the robber.  C.G. reviewed the pictures twice before selecting Williams’s picture.  C.G. said, “I think that’s him,” and she signed and dated the back of the photo.  C.G. later testified at trial that she had no doubt that Williams was the robber that day.

Before trial, the state moved that, if the jury convicted Williams, the court should sentence him under the dangerous-offender statute.  Minn. Stat. § 609.1095, subd. 2 (Supp. 2005).  After a jury found Williams guilty of second-degree aggravated robbery, Williams waived his right to a sentencing jury and submitted the matter to the district court.

During the sentencing phase of the trial, the state introduced evidence that, in March 2005, Williams pleaded guilty and was sentenced on eight counts of aggravated robbery.  For those eight counts Williams received a stayed sentence of 59 months and five years probation.  Based partly on those prior convictions, the court concluded that Williams was a dangerous offender under the statute and that an upward sentencing departure was appropriate.  The court also found that Williams had violated the conditions of his probation.  The court sentenced Williams to 59 months for that offense, in addition to a consecutive 119 months on the new offense, second-degree aggravated robbery, under the dangerous-offender statute.  This appeal followed.

D E C I S I O N

Sufficiency of the Evidence

Williams argues that the evidence was insufficient to support the jury’s verdict that he was guilty of second-degree aggravated robbery because C.G.’s testimony was insufficient to identify him as the robber.  Williams also argues that C.G.’s testimony that Williams had his hand to his waist as if he had a weapon was also insufficient to prove the elements of threat of force and the implied possession of a dangerous weapon.

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, is 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 contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This 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.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Williams was convicted of second-degree aggravated robbery under Minn. Stat. § 609.245, subd. 2 (2004).  Second-degree aggravated robbery is defined as a robbery committed by a person who, by word or act, implies possession of a dangerous weapon.  Id.  An element of this crime is the intentional creation in a victim’s mind an understanding that force would be used immediately if the victim resisted or refused to cooperate.  10 Minnesota Practice, CRIMJIG 14.06 (2006).

Williams argues that the state did not provide sufficient evidence to prove beyond a reasonable doubt that he robbed the Tobacco Warehouse or that he intended to imply threat of force through the possession of a dangerous weapon.  Williams points out that “[i]ntent must be determined from all the objective facts and circumstances, including the defendant’s conduct and/or statements at the time of the act.”   State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983).  Williams also points out that the state’s evidence consisted solely of C.G.’s testimony and that she thought the robber “maybe had a weapon down the front of his pants.”  Williams argues this direct evidence was too ambiguous to prove that Williams was the robber or that he intended to imply a threat of force through possession of a dangerous weapon. 

As the state points out, it is well settled that a verdict may be based on the testimony of a single credible witness.  State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).  Furthermore, “[i]dentification testimony need not be absolutely certain; it is sufficient if the witness expresses a belief that she or he saw the defendant commit the crime.”  Id.  As long as the evidence was sufficient to reasonably support the jury’s verdict, the credibility of the witness is for the jury to determine alone.  State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004). 

First, C.G. said that she twice looked the robber directly in the face, both as he entered the store and as she handed him cigarettes.  C.G. later gave multiple, consistent descriptions of the robber which matched Williams’s physical characteristics.  C.G. also positively identified Williams in a photo line-up, from which she said she had “no doubt whatsoever” that Williams was the robber.  Given C.G.’s consistent identification of Williams as the robber, the jury could reasonably have found that Williams robbed the Tobacco Warehouse.

Second, C.G. testified that Williams “indicated by his actions that he maybe had a weapon down the front of his pants when he told me to give him all the money in the register.”  She said that Williams gestured in a way that caused her to feel he had a gun:

He lifted up the front of his jacket and shirt and that’s when he put his hand under the [counter], but he also stepped closer to the counter so that he was up against the counter . . . .  [H]is [other] hand was on top of the counter . . . upturned so that I could put the money in his hand . . . .  [Williams] said give me all the money in the register and don’t make a fuss.

 

Williams leaned over the counter.  C.G. testified, “I thought he had a weapon.”  She was terrified, because she “assumed he had a gun.”  She demonstrated the robber’s motions for the jury.  In determining C.G.’s credibility, the jury must have considered C.G.’s demeanor as she demonstrated Williams’s motions during the robbery.  At sentencing, the court also particularly noted C.G.’s genuine terror as she recalled the events of the robbery at trial.  Williams’s actions, coupled with his demand for the money reasonably implied that he had a weapon. 

After taking C.G.’s testimony and demeanor into account, as well as the other evidence presented by the prosecution at trial, the jury could reasonably have found C.G.’s testimony credible enough to find Williams guilty of second-degree aggravated robbery beyond a reasonable doubt.  Under such circumstances, a reviewing court shall defer to the finder of fact, and we shall not disturb the verdict in the district court.  Alton, 432 N.W.2d at 756.

Dangerous-Offender Statute

Williams and the state agree that the district court erred in sentencing Williams under the dangerous-offender statute because Williams lacks the requisite two or more prior convictions for violent crimes needed to qualify him as a dangerous offender.  Minn. Stat. § 609.1095, subd. 2 (Supp. 2005).  We agree. 

A criminal sentence that is contrary to the requirements of the applicable sentencing statute is unauthorized by law.  Minn. R. Crim. P. 27.03, subd. 9.  Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). 

The dangerous-offender statute permits the district court to sentence an offender up to the statutory maximum sentence if the offender has “two or more prior convictions for violent crimes,” and if the offender is a danger to public safety.  Minn. Stat. § 609.1095, subd. 2.  The statute defines a “prior conviction” as a “conviction that occurred before the offender committed the next felony resulting in a conviction and before the offense for which the offender is being sentenced under this section.”  Id. at subd. 1(c) (2004 & Supp. 2005).  This means that the dangerous-offender statute requires two sequential convictions before the district court may apply the statute to a third conviction.  See State v. Huston, 616 N.W.2d 282, 284 (Minn. App. 2000) (explaining the sequential requirement for multiple convictions under the similar career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2004)).  This sequencing requirement is meant to exclude “prejudicial use of multiple convictions resulting from a short crime spree,” and it is also meant to allow postconviction opportunities for reform before the next offense.  Id.    

Williams argues, and the state agrees, that Williams’s prior convictions do not meet the requirements needed to apply the dangerous-offender statute because those convictions resulted from a short crime spree that occurred over the span of roughly nine days.  Furthermore, Williams points out that he had only one postconviction opportunity for reform, instead of the two required by the statute, before he committed the current robbery. 

Because Williams’s prior convictions resulted from a crime spree that took place over just a few days, and because Williams had only one post-conviction opportunity for reform, the district court was not authorized under the dangerous-offender statute to apply an aggravated sentencing departure in this case.  Therefore, we reverse Williams’s sentence, and we remand this case for resentencing.

            Affirmed in part, reversed in part, and remanded.