State of Minnesota, Respondent, vs. Edward Ortiz Sanchez, Appellant.

State of Minnesota, Respondent, vs. Edward Ortiz Sanchez, Appellant. A05-1151, Court of Appeals Unpublished, August 29, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1151

 

 

State of Minnesota,

Respondent,

 

vs.

 

Edward Ortiz Sanchez,

Appellant.

 

 

Filed August, 29 2006

Affirmed

Lansing, Judge

 

 

Ramsey County District Court

File No. K8-04-2698

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

Alberto Miera, 956 Birch View Court, St. Paul, MN 55119; and

 

Deborah Ellis, 700 St. Paul Building, 6 West Fifth Street, St. Paul, MN 55102 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On appeal from his conviction and sentence for aiding and abetting first-degree aggravated robbery, Edward Sanchez argues that the evidence is insufficient to support his conviction and that the district court abused its discretion by denying both his motion for a mistrial and his motion for a downward sentencing departure.  Because we conclude that sufficient evidence establishes Sanchez knowingly participated in the offense and that the district court did not abuse its discretion by denying his mistrial motion or imposing the presumptive guidelines sentence, we affirm.

F A C T S

While riding motorcycles on Robert Street in St. Paul, Edward Sanchez and his friend, James Rivera, saw a truck that matched the description of one Sanchez's mother had observed two days earlier repeatedly driving by her house in a manner she found threatening.  After successfully communicating that the driver should stop the truck, Sanchez approached the passenger side and asked the passenger whether he had threatened Sanchez's mother by holding a gun next to his face as he drove in front of her house.  The passenger denied any threatening conduct.  Sanchez then asked the passenger to follow him to his mother's house to see if she could identify the passenger.  The passenger refused.

            As Sanchez continued talking to the passenger, another car stopped immediately in front of the truck, and two men emerged.  One of the men, Sanchez's brother, began punching the passenger, who was still seated in the truck.  Sanchez also began hitting the passenger repeatedly.  The driver ran from the truck, and, as the passenger was trying to escape, he heard a person yell, "Take the truck."  The passenger saw Sanchez's brother drive the truck away. 

            The state charged Sanchez with committing a crime for the benefit of a gang, and aiding and abetting first-degree aggravated robbery.  The case was tried to a jury in November 2004.  The testimony was not lengthy, but the trial took several days because of an intervening holiday and problems with scheduling and interpreters. 

When the jury began deliberations, one of the jurors expressed frustration with the amount of time the trial process was taking.  The bailiff notified the judge that this juror wanted to go home and that she requested that an alternate replace her.  The district court instructed the bailiff to tell the juror that the alternates had been released and that the juror should deliberate.  When the bailiff conveyed this directive to the reluctant juror, she indicated that she did not want to join the other jurors.  At about the same time, the other jurors were leaving the jury room to go to lunch, and the reluctant juror got on the elevator.  The judge's clerk then told the bailiff to delay lunch to enable the district court to address questions submitted by the jury.  As the deputies attempted to usher the jury back to the jury room, the reluctant juror refused to get off the elevator.  The bailiff told the juror that he was authorized to arrest her for contempt if she refused to cooperate and that she was required to return to the jury room.  Although the juror expressed frustration, she complied.

The district court spoke with the juror in the courtroom to ascertain the nature of her problem.  The juror said that she had a new job, that she had children and her father to care for, that she wanted to go back to her job, and that she did not "have time to sit here and play this game."  The district court reminded the juror of her oath and her obligation to deliberate and explained that, because the alternate jurors had already been dismissed, her failure to deliberate could result in a mistrial.  The juror agreed to return to deliberations and to comply with her oath.

            The next morning the juror again expressed reluctance to a deputy, saying that if she were required to return to the jury room, "there might be an assault."  The deputy talked with the juror and she voluntarily joined the others for deliberations.  The deputy reported this interaction to the district court later that morning.  In an effort to obtain additional information, the district court checked to see if the juror had a criminal record and learned that she had a warrant for failure to appear on a driving-after-revocation charge.  Because the district court was in trial on another case, the attorneys did not receive this information until they were notified that the jury had reached a verdict.  Sanchez moved for a mistrial.  The district court denied the motion, stating that, despite the earlier problems, it appeared that the juror had cooperated in the jury deliberations.

The jury returned a verdict of not guilty on the charge of crime committed for the benefit of a gang and a verdict of guilty on the charge of first-degree aggravated robbery.  The district court polled the jury and then asked them to go back to the jury room so that individual jurors could be called to the courtroom for questioning.  In response to questioning, the jury foreperson said that, although the reluctant juror had used foul language and demonstrated frustration with the pace of the deliberations, the foreperson believed that the verdict was the just and honest decision of all twelve jurors.  In response to further questioning, the foreperson identified one juror who might have been uncomfortable with the reluctant juror's actions.  The district court called this juror back for questioning.  In response to questioning, the identified juror indicated that the cursing and aggressive speech had made her anxious, but that she believed the verdict was the true and correct verdict of all twelve jurors as a group.

At sentencing, the court imposed the presumptive guidelines sentence of fifty-eight months, executed.  Sanchez appeals from both his conviction and his sentence.

D E C I S I O N

I

A person is guilty of robbery if he "takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person's resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property."  Minn. Stat. § 609.24 (2002).  If the person, while committing the robbery, is armed with a dangerous weapon or inflicts bodily harm upon another, the person is guilty of first-degree aggravated robbery.  Id. § 609.245, subd. 1 (2002).  The state must establish that the use of force preceded or accompanied the taking or carrying away of the property and that force was "used to overcome the victim's resistance or compel his acquiescence."  State v. Kvale, 302 N.W.2d 650, 653 (Minn. 1981). 

A person is also guilty of robbery if he "intentionally aids, advises, hires, counsels, or conspires with" another person to commit the crime.  See Minn. Stat. § 609.05, subd. 1 (2002) (imposing liability for crimes committed by another).  To establish criminal liability for aiding and abetting, the state must demonstrate "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).  Inaction or passive acquiescence does not amount to criminal culpability, and a defendant's mere presence at the place where the crime occurs is alone insufficient to prove that a person aided or abetted in the commission of the crime.  State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993).  But direct participation in the overt act that constitutes the offense is not necessary; the defendant's criminal intent may be inferred by his presence, companionship, and conduct in the time surrounding the offense.  Ostrem, 535 N.W.2d at 924; Russell, 503 N.W.2d at 114. 

Sanchez asserts that the evidence is insufficient to establish that he aided and abetted the commission of first-degree aggravated robbery.  In a challenge to the sufficiency of the evidence, we determine "whether the jury could reasonably find the defendant guilty given the facts in evidence and the legitimate inferences which could be drawn from those facts."  State v. Miles, 585 N.W.2d 368, 372 (Minn. 1998).  Because the jury is in the best position to evaluate the credibility of witnesses, our review assumes that the jury believed witness testimony that supported the verdict and disbelieved any contradicting evidence.  State v. Henderson, 620 N.W.2d 688, 705 (Minn. 2001); see also State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) ("Deciding the credibility of witnesses is generally the exclusive province of the jury.").

Sanchez contends that the record fails to establish his participation in the robbery because he was merely present at the scene of the robbery and did not participate in the theft of the truck.  Although the evidence is undisputed that Sanchez's brother drove the truck away, the evidence of Sanchez's involvement is sufficient to support the jury's verdict that he aided and abetted in the commission of the crime.  Sanchez admitted that he initiated the incident by stopping the truck and insisting that the passenger accompany him to his mother's house.  He also testified that he hit the passenger several times before the passenger escaped.  By his admitted active participation in beating the passenger, Sanchez inflicted bodily harm, which caused the driver to run from the area and also prevented the passenger from obtaining the keys to the truck or in any way resisting when Sanchez's brother drove off with the truck.  The passenger testified that, during the attack, one of the assailants told Sanchez's brother to take the truck.  He also testified that all of the attackers left together and that the two men riding the motorcycles, Sanchez and Rivera, "went afterwards, following the truck."

Sanchez argues that his testimony that he left before his brother took the truck precludes a determination that he aided and abetted the robbery.  We reject this argument for two reasons.  First, Sanchez's argument assumes the jury believed his testimony and not the testimony of the passenger.  The jury was free to accept or reject Sanchez's testimony and, based on its verdict, apparently accepted the passenger's account of the incident.  See Doppler, 590 N.W.2d at 635 (stating that determination of witness credibility is exclusive province of jury).  Although the evidence does not establish that Sanchez told his brother to steal the truck, the passenger's testimony confirms Sanchez's presence when the statement was made and that he took no steps to interfere with the theft. 

Second, whether or not Sanchez was present during the commission of the crime, the evidence is sufficient for the jury to reasonably determine that he aided and abetted the crime.  The jury could determine the extent of his participation from the affirmative evidence and also infer his involvement from the interaction with the group before and during the attack.  See State v. Parker, 282 Minn. 343, 355, 164 N.W.2d 633, 641 (1969) (concluding that defendant's failure to object or prevent robbery demonstrated that defendant aided and abetted commission of crime).  Given his participation in beating the passenger, which facilitated the removal of the truck, the jury could reasonably conclude that Sanchez's conduct formed an integral part of the aggravated robbery.  See id. (stating that defendant aided and abetted commission of crime when "his presence and acts helped to make all the crimes possible"). 

II

            The district court has the duty of supervising, directing, and controlling trial proceedings and determining, within its discretion, when circumstances warrant a mistrial.  State v. Graham, 371 N.W.2d 204, 207 (Minn. 1985).  The district court is in the best position to assess whether a mistrial is the only means of obtaining "the ends of substantial justice," and we review its decision based on an abuse-of-discretion standard.  State v. Long, 562 N.W.2d 292, 296 (Minn. 1997) (quotation omitted). 

Sanchez asserts that the district court abused its discretion by denying his motion for a mistrial for two reasons:  first, because the conduct of the reluctant juror denied Sanchez the benefit of a twelve-person jury, and, second, because the bailiff improperly communicated with the juror by suggesting that she could be held in contempt if she did not exit the elevator and return to the courtroom.

The district court determined that, despite the reluctant juror's initial conduct, she participated in the deliberations that resulted in the verdict, and the verdict was not a product of juror misconduct.  The record shows that the juror was obviously struggling to balance her competing civic and personal responsibilities.  But the record also shows that, following her early acts of resistance, she agreed to abide by her oath and joined the other jurors in their deliberations.  The record does not provide specific times for all of the events, but generally indicates that the reluctant juror missed little of the jury's deliberations and that she was outside the jury room only in the initial part of the deliberations.  

The district court's questions of the foreperson and the additional juror after the return of the verdict provided information that confirmed the integrity of the deliberations and the unanimous verdict.  Both jurors stated that the verdict was unaffected by the reluctant juror's behavior and that it was the true verdict of the full jury.  At the defendant's request, the district court polled the jury, and each juror affirmed that the verdict was their true verdict.  The jury's finding that Sanchez was guilty of one charge and not guilty of another further confirms the jury's consideration of the evidence and their charge.  The district court acted within its discretion by refusing to grant a mistrial for juror misconduct. 

            Sanchez's second basis for a mistrial, the bailiff's conduct in directing the juror to exit the elevator and return to the courtroom, was not raised in the district court.  Even if the failure to raise this issue did not result in waiver, it does not provide a basis for a mistrial.  The bailiff may not communicate with a juror about the substantive issues of the case or otherwise guide the jury's deliberations but that was not the nature of the communication.  See State v. Broughton, 154 Minn. 390, 396, 192 N.W. 118, 121 (1923) (noting that bailiff has duty to guard, not guide, jury in deliberations).  The bailiff only informed the juror that he had the authority to arrest her for contempt if she refused to comply with the court's order.  This conduct did not exceed the bailiff's authority and does not warrant a mistrial.  See State v. Cox, 322 N.W.2d 555, 559-60 (Minn. 1982) (affirming district court's denial of mistrial motion when sheriff commented on defendant's probable guilt within earshot of jury); State v. Hill, 287 N.W.2d 918, 920-21 (Minn. 1979) (stating that improper contact between bailiff and jury was insufficient basis for new trial).

            Sanchez's mistrial motion in the district court was also based, in part, on the reluctant juror's failure to disclose during voir dire that she had a four-year-old violation that had gone to warrant.  On appeal, Sanchez has not argued that the district court abused its discretion by denying a mistrial on this basis, and the record does not support an argument that the juror responded untruthfully to a voir dire question or that she was aware of the outstanding warrant.

III

 

Finally, Sanchez appeals the district court's sentence.  A district court has broad discretion in imposing a sentence.  State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000).  The court may not, however, depart from the presumptive guidelines sentence absent the presence of aggravating or mitigating factors.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  A downward departure requires a showing of "substantial and compelling circumstances."  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  But the presence of a mitigating factor does not require departure from the presumptive guidelines sentence.  State v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  We will therefore reverse a district court's imposition of the presumptive sentence only in rare cases.  Kindem, 313 N.W.2d at 7.

Sanchez asserts that the district court abused its discretion by refusing to grant him a downward departure and by imposing a longer sentence than his brother received, despite his brother's greater culpability.  Sanchez, however, received the presumptive guidelines sentence based on his criminal-history score.  Although his brother received a lesser sentence, this disparity is based on his brother's lower criminal-history score.  The district court did not abuse its discretion by imposing the presumptive guidelines sentence and by refusing to depart when Sanchez did not demonstrate circumstances warranting departure.

            Affirmed.