State of Minnesota, Respondent, vs. Abraham NMN Jones, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-26

State of Minnesota,

Respondent,

vs.

Abraham NMN Jones,

Appellant.

Filed February 10, 2004

Affirmed

Lansing, Judge

Hennepin County District Court

File No. 02041579

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; 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, Marie Wolf, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

            Considered and decided by Lansing, Presiding Judge, Wright, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury found Abraham Jones guilty of one count of kidnapping and one count of terroristic threats.  On appeal from the judgment of conviction, Jones argues that the state violated his right to due process by charging him with kidnapping and terroristic threats rather than with domestic assault.  Jones also challenges the sufficiency of the evidence to support the jury's verdicts.  We affirm.

F A C T S

The encounter underlying Abraham Jones's two convictions took place in the apartment he shared with Tara White and White's three-year-old daughter.  White and Jones had lived together for four months and, according to White, had decided to break up the day the incident occurred.  After Jones left for work, White began packing her possessions and called her mother to arrange for a ride.  Because her mother could not immediately leave to pick her up, White called back about five times.  During the last call, Jones returned to the apartment.  While White was giving directions on how to get to the apartment, Jones took the phone from White and hung up.  White's mother called back three times.  On the third call, Jones answered and said that White and her daughter had left.  White's mother could hear White's voice in the background, became concerned for her safety, and called police.

When the police arrived they knocked several times before Jones came to the door.  Both police officers testified that Jones appeared to be in the middle of a fighthe was winded, sweating, breathing heavily, and had a cut above his right eye.  Jones would not let the officers enter, told them that White was not in the apartment, and slammed the door.  The officers continued to knock and Jones eventually returned to open the door slightly.  One of the officers wedged his foot in the door and both attempted to push their way in with Jones pushing back.  Jones then said they could come in, but he needed a few minutes.  The officers pushed the door open and entered.  They found White in a back bedroom in a fetal position with blood on her face and clothing.

The officers testified that the blinds in the bedroom were broken and the room was in complete disarray.  White had bruises on her arms, small cuts on her face, choke marks around her neck, a laceration on her left arm, carpet burns on her right arm, and bruises on her body.  After talking with both White and Jones, the officers arrested Jones.

At trial White testified that after Jones had taken the phone out of her hand, he pulled her by the hair, threw her on the floor, and choked her.  White stated that Jones threatened to kill her if she did not cooperate with him and would not let her go into her daughter's room.  White tried to get away, but Jones would not let her leave their bedroom.  She was able to get free from him temporarily and slammed a door in his face, giving him a cut above his eye, but she was unable to leave the apartment because she slipped and fell.  While she was on the ground, Jones put his foot on her neck and started to push down on it.  Jones then grabbed White, dragged her into the closet, and punched and kicked her.  According to White, she tried to run to the front door, but Jones would not let her pass and told her that she was not leaving.  He threw her against the blinds in the bedroom causing the blinds to break.  White testified that she was beaten for half an hour to an hour.  Pictures taken on the day of the offense showed tattered and broken blinds.  The pictures of White were consistent with the police description of her injuries.

Jones also testified at trial.  He denied that he punched, kicked, or choked White.  He said that he had returned to the apartment and found White packing plastic bags.  He encouraged her to leave the apartment but had to restrain her from harming herself.  He testified that he twice grabbed her to stop her from jumping off the balcony and from running into the bathroom where he feared she would attempt suicide.  Jones testified that while he was attempting to restrain her, White punched him in the mouth and threw an iron at him.

The jury found Jones guilty of kidnapping under Minn. Stat. § 609.25, subds. 1(3), 2(1) (Supp. 2001), and terroristic threats under Minn. Stat. § 609.713, subd. 1 (Supp. 2001).  The district court imposed sentence on the kidnapping conviction but not on the terroristic threats.  Jones appeals, arguing that (1) the district court violated his due process rights by denying his pretrial motion to dismiss the kidnapping charge, and (2) the evidence is insufficient to support the kidnapping or terroristic threats conviction.

D E C I S I O N

I

            Generally, we consider constitutional challenges on appeal only if the challenge is made and litigated before the district court.  State v. Frazier, 649 N.W.2d 828, 839 (Minn. 2002) (quoting Hampton v. Hampton, 303 Minn. 500, 501, 229 N.W.2d 139, 140 (Minn. 1975)).  When a constitutional challenge was neither adequately raised nor considered in the district court, the appellate record is insufficient for review.  See State v. Odenbrett, 349 N.W.2d 265, 269 (Minn. 1984) (declining in criminal case to reach constitutional issue on privacy rights because not adequately raised or considered in district court and inadequately presented on appeal).

Jones argues that his right to due process was violated because he was charged under the kidnapping and terroristic-threats statutes, rather than under the more specific domestic-assault statute, and that he did not have fair warning that this conduct could be prosecuted as kidnapping or terroristic threats.  But Jones did not raise this alleged violation of due process before or during trial.  Jones's pretrial motion for dismissal was based only on his claim that the kidnapping charge was unsupported by probable cause.  That issue is fundamentally the same as Jones's second issue, which we address in section IIwhether the evidence is sufficient to satisfy the elements of the kidnapping offense.  Once convicted, a defendant's probable cause challenge is irrelevant because if there is sufficient evidence to confirm the conviction, there is necessarily probable cause.  State v. Holmberg, 527 N.W.2d 100, 103 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995).

Reasoned appellate procedure does not permit an appellant to transform a pretrial motion challenging probable cause into an appellate issue challenging a prosecutor's charging decisions on due process grounds.  A challenge to charging decisions implicates complex separation of powers issues that are distinct from probable cause issues.  State v. Carriere, 290 N.W.2d 618, 621 (Minn. 1980).  Jones's due process challenge to the prosecutor's charging decision is raised for the first time on appeal, is not properly before this court, and we decline to review it.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (appellate court generally will not decide issues which were not raised before the district court, including constitutional questions of criminal procedure); State v. Sorenson, 441 N.W.2d 455, 459 (Minn. 1989) (failure to challenge in district court the constitutionality of seizure constitutes waiver).

II

            Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences from those facts, a jury could reasonably conclude that the defendant committed the crime charged.  See State v. Folkers, 581 N.W.2d 321, 326 (Minn. 1998) (direct and circumstantial evidence sufficient to support jury's finding of guilt).  This court does not retry the facts but instead views the evidence in the light most favorable to the verdict and assumes the jury believed the witnesses whose testimony supported the verdict and disbelieved the evidence that did not.  State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999).  The 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 jury found Jones guilty of kidnapping, in violation of Minn. Stat. § 609.25, subd. 1(3) (Supp. 2001).  To prove the crime of kidnapping under this subdivision the state must establish beyond a reasonable doubt that (1) the defendant confined or removed a person, (2) without the person's consent, (3) for the purpose of terrorizing the victim or another or committing great bodily harm.  Minn. Stat. § 609.25, subd. 1(3) (Supp. 2001).  Kidnapping does not require that a person be detained for a substantial period of time or transported a substantial distance.  State v. Budreau, 641 N.W.2d 919, 929 (Minn. 2002).  When conflicting testimony is presented, it is the function of a jury to weigh the credibility of witnesses.  State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987).

Jones argues that the evidence is insufficient to establish that he confined or removed White.  But White testified that Jones would not let her leave the bedroom, would not let her go to her daughter's bedroom, would not let her leave the apartment, and dragged or threw her into a closet.  Although Jones testified that he repeatedly told White to leave the apartment, his testimony conflicted with the testimony of White, and the jury accepted White's account of the events and rejected Jones's account.  White's testimony is sufficient for the jury to have reasonably concluded that Jones confined or removed White.  The testimony of White's mother and the police officers further confirm Jones's actions.  Jones denied to both White's mother and to the police that White was in the apartment.  And he attempted forcibly to prevent police from entering the apartment to check on White's safety.

Jones also argues that the evidence is insufficient to support his conviction of terroristic threats.  To establish the crime of terroristic threats, the state must prove (1) that the defendant threatened, directly or indirectly, to commit a crime of violence, (2) with purpose to terrorize another or in reckless disregard of causing such a terror.  Minn. Stat. § 609.713, subd. 1 (Supp. 2001).

White testified that Jones said she could not leave the apartment and threatened to kill her if she did not cooperate with him.  She further testified that she believed Jones would kill her.  White's testimony was sufficient for the jury reasonably to conclude that Jones threatened to commit a crime of violence with the purpose of terrorizing Tara White.  The evidence supports Jones's conviction of terroristic threats.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.