In Re the Marriage of: Karen Bennett, n/k/a Karen Cowdry, petitioner, Respondent, vs. Stephen Bennett, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-461

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Arris Means, Sr.,

Appellant.

 

Filed December 19, 2000

Affirmed in part, Reversed in part, and Remanded

Kalitowski, Judge

 

Hennepin County District Court

File No. 99080217

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Jeffrey Arris Means, Sr. challenges his convictions of two counts of first-degree aggravated robbery and one count of second-degree assault, arguing that the district court erred by:  (1) excluding from evidence photographs of his injuries; and (2) preventing him from questioning the victim about an alleged prior attack by the victim against appellant.  Appellant also contends his convictions and sentence for two counts of first-degree aggravated robbery and one count of second-degree assault were improper and raises additional issues in a pro se supplemental brief.  We affirm in part, reverse one of the aggravated robbery convictions, and remand. 

D E C I S I O N

I.

Appellant contends the district court abused its discretion by excluding police photographs of his injuries on the ground that the pictures lacked foundation.  We disagree.

Evidentiary rulings concerning materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence are within the [district] court's sound discretion and will only be reversed when that discretion has been clearly abused.

 

Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted).  The admission of photographs is in the discretion of the district court and will not be reversed absent a showing of an abuse of discretion.  State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994).

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

 

Minn. R. Evid. 901(a).

Here, the photographs appellant attempted to introduce into evidence indicated that they had been taken on August 12, 1999.  But appellant insisted that they had been taken after August 12, 1999.  Because of this discrepancy as to the date of the photos, there was a question as to whether the photographs showed what appellant claimed they did.  Therefore, we cannot say the district court abused its discretion by excluding the photographs.

II.

            Appellant contends the district court improperly prevented him from testifying about a previous incident where the victim allegedly assaulted him with a box cutter.  We disagree.  The record indicates the district court did not prevent appellant from testifying about the alleged incident.  Rather, the court prevented appellant from cross-examining the victim about it.  The scope of cross-examination is left largely to the district court's discretion and will not be reversed absent a clear abuse of discretion.  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998).  A district court's "wide latitude" to place limits on cross-examination of a prosecution witness is based on concerns "about such things as harassment, decision making on an improper basis, confusion of the issues, and cross-examination that is repetitive or only marginally relevant."  State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995) (citation omitted).

            Here, appellant's counsel proposed to the district court:

If allowed to question I would ask [the victim] if she's aware of this incident and I would not probe further into questioning.

 

            * * * *

 

If this actually occurred, perhaps we can ask [the victim] * * * if it occurred.  If she says no, I would have no problem not asking [the victim] a question like that.

 

The district court rejected appellant's cross-examination request, stating that

the question may not be asked of the alleged victim.  The notice was not timely * * * [and t]here was no foundation requirement.  The indication was that there had been a police report.  There is no police report.  Based upon that the Court finds that there's no basis for asking the question at this time.

 

On this record, we conclude the district court did not abuse its discretion by denying appellant's request to cross-examine the victim about an alleged prior assault.

III.

            Appellant contends the district court erred in convicting him of first-degree aggravated robbery-harm, first-degree aggravated robbery-weapon, and second-degree assault.  He points out that Minnesota law prohibits two convictions of the same offense or "of one offense and a lesser necessarily included offense[ ] on the basis of the same criminal act."  State v. Bowser, 307 N.W.2d 778, 779 (Minn. 1981) (applying Minn. Stat. § 609.04 (1980), identical predecessor to Minn. Stat. § 609.04 (1998)).

A.        First-Degree Aggravated Robbery Convictions

Appellant first argues he was improperly convicted of two counts of first-degree aggravated robbery.  We agree.  First-degree aggravated robbery is defined as

[w]hoever, 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, or inflicts bodily harm upon another * * * .

 

Minn. Stat. § 609.245, subd. 1 (1998) (emphasis added). 

Here, appellant was convicted of two counts of first-degree aggravated robbery based on being armed with a dangerous weapon and inflicting bodily harm.  Because a defendant cannot be convicted twice for the same offense based on a single criminal act against the same victim, appellant can be convicted of first-degree aggravated robbery based on either infliction of bodily harm or being armed with a dangerous weapon, but not both.  See Bowser, 307 N.W.2d at 779 (holding defendant cannot be convicted under different sections of same statute for single criminal act against the same victim).  Because the district court erred in convicting appellant of two counts of first-degree aggravated robbery, we remand to the district court with instructions to vacate one of appellant's first-degree aggravated robbery convictions.

B.        Second-Degree Assault Conviction

Appellant also contends that his conviction of second-degree assault must be vacated because it is a lesser included offense of first-degree aggravated robbery.  We disagree.

In determining whether an offense is a necessarily included offense, a reviewing court looks at the elements of the offense rather than at the facts of the particular case.

 

State v. Brown, 597 N.W.2d 299, 304 (Minn. App. 1999) (citing State v. Roden, 384 N.W.2d 456, 457 (Minn. 1986)), review denied (Minn. Sept. 14, 1999).  "If it is impossible to commit the greater offense without also committing the lesser offense, the lesser offense is necessarily included in the greater offense."  Id. (citation omitted).

Second-degree assault, as charged in this case, is defined as "[w]hoever assaults another with a dangerous weapon."  Minn. Stat. § 609.222, subd. 1 (1998).  As previously stated, first-degree aggravated robbery is defined as

[w]hoever, 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, or inflicts bodily harm upon another * * * .

 

Minn. Stat. § 609.245, subd. 1.  Thus, while use of a dangerous weapon is an element of second-degree assault, it is not necessary to use a dangerous weapon to commit first-degree aggravated robbery.  Brown, 597 N.W.2d at 304.

Recognizing this, appellant in his brief to this court acknowledges:

[I]f appellant were formally adjudicated on the First Degree Aggravated Robbery conviction in count III which did not involve a theory of liability based on use of a weapon, a separate adjudication for the Second Degree Assault conviction would not be barred.

 

Therefore, whether appellant's conviction for second-degree assault is a lesser included offense of first-degree aggravated robbery depends on which first-degree aggravated robbery conviction the district court vacates.  If on remand the district court vacates the first-degree aggravated robberyharm conviction, appellant's second-degree assault conviction must be vacated as a lesser included offense of first-degree aggravated robberyweapon.  Alternatively, if the district court vacates the first-degree aggravated robberyweapon conviction, appellant's second-degree assault conviction can stand because it is not a lesser included offense of first-degree aggravated robberyharm.

C.        Sentence for Second-Degree Assault

Appellant contends that even if he can be properly convicted of both first-degree aggravated robbery and second-degree assault, his sentence for second-degree assault is improper.  We agree.  Section 609.035, subdivision 1, provides:

[I]f 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 (Supp. 1999).  The court in Brown states that the purpose of section 609.035 is

to limit punishment to a single sentence where a single behavioral incident result[s] in the violation of more than one criminal statute.  Thus, if a defendant commits multiple offenses against the same victim during a single behavioral incident, Minn. Stat. § 609.035 provides that the defendant may be sentenced for only one of those offenses.

 

Brown, 597 N.W.2d at 305 (quotation omitted).  Moreover, "[m]ultiple punishment refers not to multiple convictions but multiple sentences and any multiple sentences, including concurrent sentences, are barred if section 609.035 applies."  Id. (quotation omitted).

            In determining whether crimes are part of a single behavioral incident, a court should focus on "the factors of time and place" and consider "whether the segments of conduct were motivated by a desire to obtain a single criminal objective."  Id. (citation omitted).  We conclude, and respondent concedes, that because the assault and robbery by appellant occurred approximately at the same time and were motivated by appellant's desire to obtain the single criminal objective of getting money from the victim, they were part of a single behavioral incident.   Because the district court erred in imposing a sentence for second-degree assault, we remand for resentencing consistent with this opinion.

IV.

            Finally, appellant submitted a pro se brief in which he argues that (1) he was denied effective assistance of counsel; (2) he was denied a jury of his peers; (3) he was forced to testify; and (4) the evidence presented to the jury was insufficient to support his convictions. 

A.                 Ineffective Assistance of Counsel

            To prevail on a claim of ineffective assistance of counsel:

The defendant must affirmatively prove that his counsel's representation ‘fell below an objective standard of reasonableness' and ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.' 

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  Appellant's criticisms that his lawyer did not challenge specific jurors, represent him to the best of his ability, refer to him as "African-American," or make a successful motion for mistrial fail to establish a claim of ineffective assistance of counsel because appellant does not articulate how his attorney's performance fell below an objective standard of reasonableness or prejudiced the outcome.

B.                Composition of the Jury

"Pursuant to the Sixth Amendment, the United States Supreme Court requires that the jury venire must reflect a fair cross-section of the community."  State v. Willis, 559 N.W.2d 693, 700 (Minn. 1997) (citation omitted).  "However, this requirement is limited and does not guarantee a defendant a petit jury of a particular racial composition or one that mirrors the racial makeup of the community."  Id. (citations omitted). 

To establish a prima facie showing that the jury venire from which a petit jury was selected did not satisfy the fair cross-section of the community requirement, appellant must show:  (1) that the group allegedly excluded is a "distinctive" group in the community;  (2) that the group in question was not fairly represented in the jury venire; and (3) that the under-representation was a result of a systematic exclusion of the group in question from the jury selection process. 

 

Id. (citations omitted).

 

Here, appellant merely contends he was denied a jury of his peers because there were no African-American jurors selected for his trial.  Based on the above factors, this contention alone is insufficient to make a prima facie showing that the venire did not reflect a fair representation of the community.

C.                Right to Testify

            Appellant asserts he was forced to testify because if he did not testify, the jurors would question his honesty.  The right to testify on one's behalf is implied by the Sixth Amendment.  Faretta v. California, 422 U.S. 806, 819 n.15, 95 S. Ct. 2525, 2533 (1975).  Here, appellant gave lengthy testimony about his version of the events.  There is no showing by appellant or in the record that his decision to testify was not voluntary.

D.                Sufficiency of the Evidence

Appellant argues that the evidence at trial was insufficient to support a guilty verdict.  In considering a claim of insufficient evidence, our 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 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).  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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

Here, the jury heard from the victim and other state's witnesses, whose testimony pointed strongly to appellant's guilt.  The jury was not required to credit appellant or the investigator who testified in his behalf.  Viewing the evidence in the light most favorable to the convictions, we conclude there was sufficient evidence to support the jury's verdict.

Affirmed in part, reversed in part, and remanded.