Opinion
No. A03-1768.
Filed October 19, 2004.
Appeal from the District Court, Hennepin County, File No. 03027069.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, (for respondent).
Bradford Colbert, Legal Assistance to Minnesota Prisoners, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this appeal from his convictions of and sentence for first-degree burglary and two counts of second-degree assault, appellant argues that (1) the district court abused its discretion when it instructed the jury that aiding and abetting an assault upon a person was an element of first-degree burglary; (2) there was insufficient evidence that he played a knowing role in the assault of one of the victims; (3) the state did not establish the facts necessary to include an out-of-state conviction in the calculation of his criminal-history score; and (4) the out-of-state conviction should not have been counted as a felony because the sentence imposed for the offense was a gross-misdemeanor sentence. We affirm appellant's convictions, but we reverse the district court's determination of appellant's criminal-history score and remand for resentencing.
FACTS
Appellant Terrell Edward Trambell stayed with a friend who lived in the apartment building where Nancy and Kenneth Abston and their three children lived. On the morning of April 7, 2003, Nancy Abston was awakened by a knock at the door. When she opened the door, she saw three men in the hall and recognized appellant as one of the men. Appellant told Nancy that her children had taken something from them. Nancy told them that she did not want to talk to them, closed and locked the door, and went to wake up her husband Kenneth Abston went to the door and spoke to the men; he testified that there were four men who told him that his children had taken their "stuff." Kenneth told the men to leave, and he shut and locked the door. The men broke down the door and entered the Abston's apartment.
Appellant, who was the first man through the broken door, rushed toward Kenneth and pushed him against the wall. Kenneth grabbed him in a bear hug, and as Kenneth held him, appellant shouted to his friends, "Are you gonna help?" One of the men hit Kenneth in the back of the head with a gun. Kenneth sustained a cut to his head that required five stitches to close, but he did not lose consciousness.
The Abston's baby woke up when the door was kicked in. Nancy went to the baby, picked her up, and then walked back toward the kitchen, where she picked up the phone and dialed 911. When she looked to see how Kenneth was doing, she saw a man pointing a gun at her and her child. The man told her to put the phone down. She moved out of the doorway and into one of the bedrooms where she crouched on the floor as she spoke to the 911 operator. She could hear her husband shouting, "They have a gun. They have a gun." Thinking that she heard a gun shot, Nancy ran into the kitchen and saw a broken bowl on the floor and heard the footsteps of the men as they left down the stairs. The Abstons identified appellant and picked his picture from a photo lineup. Appellant was charged with first-degree burglary and two counts of aiding and abetting second-degree assault in violation of Minn. Stat. §§ 609.582, subd. 1(c), .05, .222, subd. 1 (2002).
At trial, appellant testified that he was at work at the time of the incident and denied entering the Abstons' apartment. Appellant testified that he went to work at 6:00 a.m. and returned to the apartment building at 6:00 or 7:00 p.m., and his roommate told him that the Abstons believed that he kicked in their door and pistol-whipped Kenneth Abston. Appellant was going to go talk to the Abstons when an unknown and unidentified male kicked open the back door of his apartment. Appellant testified that he made eye contact with the man, who then turned and walked out. Appellant told his roommate to call the police. Appellant then called his boss and asked him to come and get appellant.
Following the district court's charge to the jury, appellant objected to including CRIMJIG 17.04, asserting that aiding and abetting an assault upon a person within the building is not a proper element of first-degree burglary. Earlier, at the jury instruction conference, appellant had agreed to the proposed instruction.
The jury found appellant guilty as charged, and the district court sentenced appellant to 72 months in prison for the first-degree-burglary conviction and concurrent terms of 41 and 53 months for the two assault convictions. Appellant's criminal-history score included two out-of-state convictions, one of which was a conviction of a person named James Brown for attempted possession of a controlled substance. At the sentencing hearing, appellant objected to including this conviction and denied committing the offense. A probation officer, Bernie Cahill, averred that he believed James Brown was an alias used by appellant and stated, "I spoke with the [p]robation [o]fficer in Wayne County, Michigan, Ms. Wanda Brown, who indicated that [appellant] had . . . used an alias on the . . . charge." The district court found that appellant committed the crime, "[b]ased on the presentation of [Cahill]."
DECISION
Jury Instructions
Appellant argues that the district court improperly instructed the jury on the elements of first-degree burglary. District courts have broad discretion 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). If the instructions correctly state the law in language that can be understood by the jury, there is no reversible error. State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998).
The state argues that appellant waived his jury-instruction claim on appeal because he failed to object to the jury instruction before it was given. In general, a defendant's failure to object to jury instructions before they are presented to the jury constitutes a waiver of the right to appeal. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). But the rules of criminal procedure state that "[n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict." Minn. R. Crim. P. 26.03, subd. 18(3) (emphasis added). The record reflects that appellant objected to the jury instruction after the district court charged the jury, but before the jury retired to deliberate. We conclude that under the rules of criminal procedure, appellant's objection was timely.
The district court used the following modified version of CRIMJIG 17.04 as the jury instruction regarding first-degree burglary:
The statutes of Minnesota provide that whoever enters a building without the consent of the person in lawful possession and the person assaults another within the building or the building's appurtenant property is guilty of a crime. . . .
Now, you will notice the statute talks about whoever enters a building without the consent of the person in lawful possession and that person assaults another within the building. Well, these crimes are charged as aiding and abetting.
And a [d]efendant is guilty of a crime committed by another person when the [d]efendant has intentionally aided the other person in committing it, or has intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit it. The [d]efendant is guilty of a crime, however, only if the other person commits a courtroom[sic].
. . . .
Now, the elements of [b]urglary in the [f]irst [d]egree are, that the [d]efendant entered a building without the consent of the person in lawful possession. Second, that the [d]efendant or a person who the [d]efendant aided or abetted assaulted a person within the building or on the building's appurtenant property.
See 10A Minnesota Practice, CRIMJIG 17.04 (stating jury instruction for first-degree burglary) (modification noted in italics). Appellant contends that by instructing the jury that it could find him guilty if an accomplice committed an assault, the district court materially misstated the law. Appellant argues that the first-degree-burglary statute requires that the burglar, not an accomplice, commit the assault. Appellant contends that, because he did not assault anyone, the court's erroneous instruction had a significant impact on the jury's verdict and as a result, appellant's first-degree burglary conviction must be reversed.
Appellant cites the trial judge's comments during the jury-instruction conference as support for his argument that he did not assault anyone. However, the judge's comments were made in the context of considering appellant's request for a lesser-included fifth-degree assault instruction on one of the second-degree assault charges and in the hypothetical context that Kenneth Abston was not hit with a gun. Because appellant was charged with aiding and abetting second-degree assault and there was ample testimony that a gun was involved, appellant's request was denied. State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975) (stating that in deciding if lesser degree should be submitted, test is whether evidence would reasonably support conviction of lesser degree and also justify finding of not guilty of greater offense).
The first-degree-burglary statute provides:
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree . . . if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building;
(b) the burglar possesses . . . a dangerous weapon . . . or
(c) the burglar assaults a person within the building or on the building's appurtenant property.
Minn. Stat. § 609.582, subd. 1 (2002). Appellant contends that clause (c) limits the scope of the first paragraph of the statute to require that the burglar, rather than the burglar's accomplice, commit an assault, as opposed to any other crime, while in the building.
Appellant cites no authority for his interpretation of the statute. It is well established that "[t]here is no distinction between principals and accessories. All participants concerned in the commission of the offense of burglary are deemed principals and are charged and punished accordingly." State v. Bates, 289 Minn. 157, 161, 183 N.W.2d 287, 289-90 (1971). Furthermore, clause (c) refers specifically to assaults to describe the circumstances under which a burglary is a first-degree burglary, not to draw a distinction between an assault committed by a burglar and an assault committed by a burglar's accomplice. A burglary is a first-degree burglary when the crime that is committed while in the building, either directly by the burglar or by an accomplice, is an assault of a person. We therefore conclude that the instruction that the district court gave correctly stated the law.
Sufficiency of the Evidence
Appellant argues that the evidence is insufficient to prove that he aided in the assault of Nancy Abston. Appellant contends that at most, the evidence shows that he was merely present at the scene of the crime.
Appellant does not challenged his conviction for aiding and abetting the assault against Kenneth Abston.
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 evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). "To impose liability under the aiding and abetting statute, the state must show some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion." State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (quotation omitted).
Mere presence at the scene of a crime does not alone prove [a defendant] aided or abetted, because inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability. Nevertheless, active participation in the overt act which constitutes the substantive offense is not required, and a person's presence, companionship, and conduct before and after an offense are relevant circumstances from which a person's criminal intent may be inferred.
Id. (citation omitted). The 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. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
The evidence demonstrates that appellant was not simply present during the criminal activity and took no steps to prevent the offenses that were committed. There was testimony that as Kenneth Abston held appellant in a bear hug, appellant shouted to the other men, "Are you gonna help?" Although appellant did not personally aim the gun at Nancy Abston and her child, a jury could reasonably conclude from appellant's calling for support that appellant and the other men were acting together and that appellant "assented to the commission of the crime, lent to it his approval, and was thereby aiding and abetting its commission." Ostrem, 535 N.W.2d at 925 (quotation omitted).
Sentencing
Appellant argues that the state failed to meet its burden of proof to include an out-of-state conviction of attempted possession of a controlled substance in the calculation of his criminal-history score. Appellant contends that the probation officer's hearsay statement that appellant used the alias "James Brown" when he committed the crime, was insufficient to prove by a preponderance of the evidence that appellant was the person involved in the out-of-state conviction.
The district court's determination of a defendant's criminal-history score will not be reversed absent an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn.App. 2002), review denied (Minn. Aug. 20, 2002).
The state has the burden of establishing the facts necessary to justify consideration of out-of-state convictions used to determine a defendant's criminal history score. The state must establish by a fair preponderance of the evidence that the prior conviction was valid, the defendant was the person involved, and the crimes constituted felonies in Minnesota.
State v. Jackson, 358 N.W.2d 681, 683 (Minn.App. 1984) (citation omitted).
Minn. R. Evid. 1005 is the standard to be used when documenting an out-of-state conviction. State v. Griffin, 336 N.W.2d 519, 525 (Minn. 1983). The rule provides:
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
Minn. R. Evid. 1005 (emphasis added). Other evidence of contents includes oral testimony. Minn. R. Evid. 1005 1977 comm. cmt.
Citing Jackson, the state argues that a probation officer's advice to the court regarding a defendant's out-of-state conviction is sufficient to support a finding that the defendant has a prior conviction. 358 N.W.2d at 683. But in Jackson, considerably more detailed documentation was relied on to determine the validity of the conviction in question. Id. at 682-83. The probation officer in Jackson stated that he had established the defendant's prior arrest for the out-of-state conviction from a federal presentence investigation; that two other sources — a federal presentence investigation and a letter from the Los Angeles County Sheriff's Department listing the defendant's prior arrests — contained a record of the arrest for the conviction in question; that the Los Angeles probation department's file indicated that the defendant pleaded guilty to the crime in question and received three years probation, a felony sentence; and finally, that the Los Angeles file contained the defendant's date of birth, his place of birth, and his parents' names, all of which were identical to the information that the defendant had recently provided. Id. at 683. Similarly, in Griffin, "there was considerable documentation" appended to the defendant's brief that served to meet the state's burden of proving that the defendant had a prior Illinois conviction. 336 N.W.2d at 525.
In contrast, here Cahill simply stated that he had spoken to another probation officer in Wayne County, Michigan, who told Cahill that appellant used "James Brown" as an alias. Cahill's statement is not comparable to the evidence relied on in Jackson or Griffin. The ultimate question is whether the state proved by a fair preponderance of the evidence that appellant committed the crime in Michigan. See State v. Wahlberg, 296 N.W.2d 408, 418 (Minn. 1980) (stating "[f]air preponderance of the evidence means that it must be established by a greater weight of the evidence. It must be of a greater or more convincing effect and . . . lead you to believe that it is more likely that the claim . . . is true than . . . not true"). A single hearsay statement that appellant used an alias does not meet the burden of proof required to establish that appellant was the person involved in the conviction of James Brown. Therefore, the district court erred by including the out-of-state conviction for attempted possession of a controlled substance in appellant's criminal history, and we reverse the determination of appellant's criminal-history score and remand for resentencing. In light of our decision, we do not consider appellant's alternative argument that the out-of-state conviction should not have been treated as a felony.