State of Minnesota, Respondent, vs. Michael Dennis Stanke, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480 A. 08, subd. 3 (1998).

State of Minnesota,
Respondent,

vs.

Jonathan Robert Blomer,
Appellant.

Mille Lacs District Court
File No. K997636

Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Jennifer A. Fahey, Mille Lacs County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)

Gregory K. Larson, Thomas F. Murtha IV, Larson Law Office, 111 First Avenue Southeast, Little Falls, MN 56345 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

A jury convicted Jonathan Blomer of first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (1994). Blomer appeals from the judgment of conviction, claiming the evidence does not establish that he "took property from the person or in the presence of another" in violation of Minn. Stat. § 609.24 (1994).

In April 1995, Troy Dietman entered the M&L General Store just before closing wearing a ski mask and brandishing a fake gun. Upon entering, he ordered the store clerk out of the store and locked him in a barn. Dietman told the clerk to wait five minutes before leaving and promised that no one would be hurt if he did what Dietman said. Before being pushed out of the store, the clerk saw another man wearing a ski mask enter the store through the bait shop.

The clerk waited three minutes and left the barn through a back door. He then went next door and called the police. When he returned to the store, the lights were off and the money was gone.

Two years later, Blomer's roommate at the time of this incident told the police that Blomer had been involved in the robbery of the M&L General Store. When the police first interviewed Blomer, he denied his involvement. During a second interview, however, he confessed. At trial, Blomer recanted his confession, claiming he had confessed only because he thought his confession could not be used against him as a result of the interrogator's failure to provide Miranda warnings. Blomer testified at length about the circumstances surrounding his confession.

During deliberations, the jury asked the court in writing if it should consider whether the police violated Blomer's Miranda rights when it obtained Blomer's confession. The judge responded, "The answer to your question is, no. You should consider only the issues I asked you to consider. Any other legal issues are not your responsibility." The jury subsequently convicted Blomer of first-degree aggravated robbery.

Following his conviction, Blomer moved for a judgment of acquittal. The trial court denied Blomer's motion and sentenced him to a 52-month executed prison term. This appeal followed.

Blomer argues three grounds as a basis for reversal of his conviction: (1) insufficient evidence to establish that he took property "from the person or in the presence of another" in violation of Minn. Stat. § 609.245 (1994); (2) improper judicial response to the jury's question on whether to consider violation of his Miranda rights; and (3) judicial failure to expressly find that he used a firearm in committing the crime. We address the issues consecutively.

Under Minn. Stat. § 609.245, whoever commits a robbery armed with a dangerous weapon or an article resembling a weapon is guilty of armed robbery. A person commits a robbery when he or she "takes personal property from the person or in the presence of another and uses or threatens the imminent use of force." Minn. Stat. § 609.245 (emphasis added). Thus, to prove aggravated robbery, the state must initially establish that the defendant took the property from the person or "in the presence of another."

The comments of the advisory committee to the 1963 Criminal Code provide that the phrase "in the presence of another" "contemplates a case where the property is not on the person but near him and by use of force the defendant prevents him from defending against the taking of it." Minn. Stat. Ann. § 609.24 advisory comm. cmt. (West 1987). This court adopted the advisory committee's explanation in upholding an aggravated robbery conviction for severely beating a victim and taking property from his bedroom while he was in the living room. State v. Bonn, 412 N.W.2d 28, 29 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987). The Bonn court reasoned that, although the victim was not in the room when the defendants took the property, he was near the property and, by force, was prevented from defending against its taking. Id. at 29-30.

The advisory committee's explanation of the phrase "in the presence of another" is sound. In enacting the robbery statute, the legislature intended to treat robbery as a more serious crime than theft because of its potential for violence and physical harm. See In re the Welfare of D.D.S., 396 N.W.2d 831, 833 (Minn. 1986) (interpreting theft statute). Because the potential for violence and physical harm is the same whether or not the victim is immediately present when the property is actually taken, a construction of the statutory language narrower than the advisory committee's would defeat the legislature's intention. Additionally, as a matter of policy, equally severe misconduct should not be classified as a less severe offense merely because a robber has removed the victim far enough away from the property to defeat the "in the presence of another" requirement.

Finally, we note that Minnesota's interpretation of "in the presence of another" is consistent with the definition adopted in a majority of jurisdictions. See, e.g., People v. Harris, 886 P.2d 1193, 1197-98 (Cal. 1994) (property taken from victim's house while defendant's accomplice forcibly held victim around the corner taken from victim's "immediate presence"); State v. Edwards, 868 S.W.2d 682, 699-700 (Tenn. Crim. App. 1993) ("in the presence of" requirement satisfied when defendant forcibly ordered victim to lock herself in bathroom while he took money from another room); People v. Blake, 579 N.E.2d 861, 864 (Ill. 1991) ("in presence of another" requirement satisfied when defendant forcibly separated victims from property by one level of a house).

The evidence conclusively establishes that the store clerk was in control of the money and would have been able to defend against its taking but for the force Blomer and his accomplice directed against him. The evidence is therefore sufficient to support Blomer's conviction for violation of Minn. Stat. § 609.245.

Blomer's second argument is that the jury was impermissibly restricted from considering the circumstances surrounding his confession when the judge, in response to a jury question, told the jury not to consider whether the police violated Blomer's Miranda rights. We believe Blomer's argument misconstrues the record.

When the trial court admits a confession as voluntary, Minnesota law requires him or her to "permit the jury to hear evidence on the circumstances surrounding the making of the confession." State v. Schaeffer, 457 N.W.2d 194, 196 (Minn. 1990). The exclusion of competent and reliable evidence bearing on the credibility of a confession violates a defendant's right to present a defense. Id. (allowing defendant to challenge confession's truthfulness by presenting competent expert evidence of susceptibility to coercion). Whether a confession is truthful and reliable is squarely a question for the jury, but whether a confession is voluntary is purely a legal question to be determined by the court prior to trial. Id.

During deliberations, the jury asked the following question: "Should the jury consider whether John Blomer's Miranda rights were violated when John Blomer gave his statement to Officer Brent Lindgren?" The jury's question was straightforward. It inquired into an issue of law, which the trial court had previously decided. The trial court properly instructed the jury not to consider it.

At the same time, however, having determined that the confession was admissible, the trial court allowed Blomer, as Minnesota law requires, to introduce evidence of the circumstances surrounding his confession. Blomer testified about the confession at length, and Blomer's counsel concedes that the reliability of the confession was argued during summation. Additionally, the trial judge instructed the jury that they were the sole judges of whether a witness was credible and were solely responsible for determining the weight to be assigned to the evidence. Blomer was entitled to no more.

The trial judge's answer to the jury's question did not deprive Blomer of the opportunity to present a defense. The evidence admitted at trial, the closing arguments, and the jury instructions amply demonstrate that Blomer was not denied the opportunity to explain the circumstances of his confession.

Finally, Blomer claims this court must reverse the jury's verdict because in denying his motion for a judgment of acquittal the trial court did not expressly find that Blomer used a firearm in the commission of a crime. Blomer's argument has no merit. The jury, by its guilty verdict on the specific charge that incorporated use of a firearm, found that the evidence established beyond a reasonable doubt that Blomer used a firearm in the commission of a crime. The law does not require that the judge make a separate finding in addition to the jury's verdict.