Opinion
No. C6-00-1142.
Filed May 22, 2001.
Appeal from the District Court, Waseca County, File No. K6009.
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, and Larry Collins, Waseca County Attorney, (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, (for appellant)
Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
After a jury convicted appellant Larry Puller on five criminal counts, the trial court imposed concurrent sentences on one count of aggravated robbery and one count of aggravated assault. There is no merit in appellant's challenges on the sufficiency of evidence supporting the jury's verdict or the trial court's denial of appellant's request to submit a written questionnaire to the jury panel regarding potential racial bias on the part of the prospective jurors. Because appellant is entitled to have one of the concurrent sentences vacated, we affirm in part, reverse in part, and remand for a redetermination of appellant's sentence.
FACTS
In January 2000, appellant and an acquaintance went to the victim's apartment, allegedly to purchase drugs. The separate testimony of appellant's acquaintance, the victim, and the victim's boyfriend reflect a similar account of the events that occurred in the apartment. After appellant's acquaintance and the victim went into the bedroom, appellant came up behind the victim, put his hand over her face, pressed a steak knife against her throat, and threatened to cut her up if she said anything. Appellant then dragged the victim to the living room while still holding the knife at her throat, and pushed her down onto the couch. These witnesses testified that appellant's demeanor was angry, threatening, and frightening.
Appellant's acquaintance further testified that the victim complied out of fear with appellant's instructions when she took money and marijuana from underneath the couch and took telephones. She and appellant then fled the apartment.
Appellant testified that when he and his acquaintance entered the apartment, he saw the victim pull a pan filled with marijuana out from under the living room couch and sell marijuana to two individuals, both of whom left soon thereafter. Appellant then decided that he would take the marijuana from under the couch without paying for it. Appellant claims that when his acquaintance and the victim went into the bedroom, he grabbed the marijuana-filled bags from the cake pan, put them in his jacket and left, with his acquaintance following him.
The jury convicted appellant of two counts of first-degree aggravated robbery, two counts of second-degree assault, and one count of terroristic threats. The court sentenced him concurrently to 33 months for the second-degree assault and 78 months for the first-degree aggravated robbery. The court sentenced him to 98 months for the first-degree aggravated robbery of the second victim.
DECISION 1.
Appellant claims that there is insufficient evidence to support his conviction of aggravated robbery of the victim because witnesses testified that appellant's acquaintance was the person who actually took the victim's money from under the couch. On the sufficiency of the evidence for a conviction, we are to determine whether a jury could reasonably have found the defendant guilty of the charged offense. State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992). We must view the evidence in the light most favorable to the verdict, and assume that the jury believed the state's witnesses while disbelieving any contrary evidence. State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994).
Appellant's attack on sufficiency of evidence involves the credibility of witnesses, and the weight and credibility attributed to testimony of witnesses is for the jury to determine. State v. Flores, 595 N.W.2d 860, 867 (Minn. 1999). The verdicts indicate that the jury found the testimony of the state's witnesses credible.
Appellant believes that he was wrongfully convicted of aiding the principal wrongdoer without being charged on that offense. A person, who, "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, * * * is guilty of aggravated robbery in the first degree." Minn. Stat. § 609.245, subd. 1 (2000). A robbery occurs when a person knowingly takes personal property from a victim "or in the presence of another" and "uses or threatens the imminent use of force against [the victim]." Minn. Stat. § 609.24 (2000). A person is liable for a robbery 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 (2000).
Aiding and abetting is not a separate or different charge. State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995). Moreover, even if the complaint does not use aiding and abetting language, a jury could sustain a conviction by determining that the defendant was liable as one who aided and abetted another. State v. Lucas, 372 N.W.2d 731, 740 (Minn. 1985). In an analogous situation, the supreme court upheld a robbery conviction when the defendant "was armed with a revolver, fired it once into the ceiling * * * and shot one of the patrons" while two codefendants actually took the money, and the charge of aiding and abetting was not mentioned in the complaint. State v. DeFoe, 280 N.W.2d 38, 40 (Minn. 1979).
Here, three witnesses testified that appellant held a knife to the victim's throat, threatened to harm everyone in the room, and ordered his acquaintance to take the money and drugs. We note also that the trial court gave a jury instruction on aiding and abetting. See Ostrem, 535 N.W.2d at 923 (holding trial court's jury instructions on aiding and abetting, although not listed in complaint, do not prejudice defendant's substantive rights). Even if appellant was convicted for his assistance to others and not as the sole offender, the conviction was appropriate.
2.
Appellant challenges the trial court's denial of his request to submit a written questionnaire to the jury panel to determine potential racial bias on the part of the jurors. The trial court has great discretion in conducting voir dire, and this court generally does not reverse a trial court's determination unless the trial court abused that discretion. State v. Chambers, 589 N.W.2d 466, 474 (Minn. 1999).
The Minnesota Constitution ensures the right of a defendant to be tried before an impartial jury. Minn. Const. art. I, § 6. The purpose of voir dire is to establish a basis for bringing any peremptory challenges or to determine whether a basis exists to challenge for cause. Minn.R.Crim.P. 26.02, subd. 4. A sworn jury questionnaire "may" also be used "to obtain information helpful to the parties and the court in jury selection before the jurors are called into court for examination." Id., subd. 2(2).
Appellant contends that the use of the written questionnaire would have determined whether any potential jurors had "thoughts or feelings that would call their ability to be fair and impartial into question." In a pre-trial meeting with the attorneys in chambers, the trial court concluded that the desired written questions could be asked directly to the jury panel and that the parties could discern the jurors' feelings from the jury profile. The court noted that a written questionnaire is not required and that the use of one here would underscore unnecessarily what appellant perceived as a racial issue. The trial court also addressed appellant's concerns that this case involved an older African-American male and a young Caucasian victim by noting that the case also involved a young Caucasian woman as a co-defendant who would be testifying against appellant.
Although the use of a written questionnaire can "increase the amount of important information provided by prospective jurors and also make for a more efficient jury selection process," it is also "intended only to supplement and not to substitute for the oral voir dire examination." Id. cmt. Here, the trial court did not restrict appellant's attorney on oral questioning of the jury panel regarding potential racial bias. See, e.g., State v. Petersen, 368 N.W.2d 320, 322 (Minn. 1985) (finding reversible error where trial court unreasonably restricted voir dire by limiting counsel to five minutes). Counsel for appellant addressed a variety of questions to potential jurors on his concerns of potential racial prejudice. The trial court did not abuse its discretion in denying appellant the use of the written jury questionnaire.
3.
Appellant argues that the trial court erred when it sentenced him concurrently for both the first-degree aggravated robbery and second-degree assault of one victim, claiming that the two offenses occurred in a single behavioral incident. The trial court sentenced appellant to 33 months for the second-degree assault and 78 months for the first-degree aggravated robbery of one victim.
"If a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses." Minn. Stat. § 609.035, subd. 1 (2000). Thus, if a defendant commits numerous crimes against the same person during a single behavioral incident, Minn. Stat. § 609.035 provides that the defendant may be sentenced for only one of those offenses. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). In determining whether two convictions arose from a single behavioral incident, the court examines whether the offenses were motivated by a desire to obtain a single criminal objective. State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). Additional factors to consider include determining "the unity of time and of place of the behavior." Bookwalter, 541 N.W.2d at 294.
The state concedes that it was error in the circumstances of this case to impose a sentence for both the assault and robbery of the one victim. The assault and robbery were both motivated by appellant's objective of taking the victim's money and drugs, and the offenses took place in the same apartment within minutes of each other. Appellant is entitled to having his assault sentence on the one victim vacated.
Because vacating the assault sentence may alter the criminal history score employed by the trial court in determining appellant's sentence for the robbery of the one victim, as well as the criminal history score for the sentence relating to the robbery of the second victim, appellant's sentences must be redetermined. Therefore, we remand for the trial court to recalculate appellant's criminal history score and resulting sentences on both robbery convictions in light of the vacated sentence for assault.
At sentencing, the trial court evidently determined that appellant had a criminal history score of two for purposes of sentencing for the assault of the one victim and a score of three for purposes of sentencing for the aggravated robbery of that victim. The trial court evidently accumulated the weight of these sentences and used a criminal history score of five in sentencing appellant to 98 months on the aggravated robbery of the second victim.
There is no merit in appellant's further contention that the assault was a lesser-included offense of the aggravated robbery so that the assault conviction should be vacated. Under Minn. Stat. § 609.04, subd. 1 (2000), a person may be convicted of a crime charged or of a lesser-included offense, but not both. In determining whether an offense is a lesser-included offense, this court must look at the elements of the offense rather than at the facts of the case. State v. Brown, 597 N.W.2d 299, 304 (Minn.App. 1999), review denied (Minn. Sept. 14, 1999).
This court has previously determined that second-degree assault is not a lesser-included offense of first-degree aggravated robbery, because the elements of the crimes result in the possibility of committing first-degree aggravated robbery without also committing second-degree assault. See id. (holding second-degree assault is not a lesser-included offense of first-degree aggravated robbery). The assault conviction should not be vacated as a lesser-included offense.