Michael Shawn Hagwood, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and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
IN COURT OF APPEALS
C8-98-1318

Michael Shawn Hagwood, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 6, 1999
Affirmed; motion granted
Anderson, Judge

Olmsted County District Court
File No. K9962575

Thomas G. Dunnwald, 400 Flour Exchange, 310 South Fourth Avenue, Minneapolis, MN 55415 (for appellant)

Michael A. Hatch, Attorney General, John Docherty, Timothy Rank, Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, Courthouse, 151 Fourth Street SE, Rochester, MN 55904 (for respondent)

Considered and decided by Anderson, Presiding Judge, Huspeni, Judge,* and Holtan, Judge.**

U N P U B L I S H E D   O P I N I O N

ANDERSON,

Judge

Appellant Michael Shawn Hagwood contends that: (1) he was denied due process and a fair trial as a result of an altercation in the hallway outside the courtroom during the trial; (2) the trial court erred by admitting appellant's North Carolina felony conviction for impeachment under Minn. R. Evid. 609; (3) the appointment of a translator for the victim denied appellant a fair trial; (4) the trial court erred by providing only JIG 4.01 as instruction after the jury had asked a question regarding the law; (5) the trial court erred regarding its jury instructions for Minn. Stat. § 609.71; (6) the trial court erred by summarily denying appellant's petition for postconviction relief; and (7) the trial court abused its discretion in sentencing appellant to 135 months, a 25-month upward departure. Respondent filed a motion to strike a page of appellant's appendix because it is based on material outside of the record. We affirm and grant the motion to strike.

 

FACTS

Appellant was charged with assault in the first degree, in violation of Minn. Stat. §§ 609.221 and 609.05 (1996); assault in the second degree, in violation of Minn. Stat. § 609.222, subd. 2 (1996), and Minn. Stat. § 609.05, subd. 1 (1996), liability for crimes of another; and riot in the second degree, in violation of Minn. Stat. § 609.71, subd. 2 (1996). A jury convicted appellant of all charges.

 

D E C I S I O N

I.

This court independently reviews a jury's exposure to alleged prejudicial material or activity. State v. Fields, 529 N.W.2d 353, 357 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995). Relevant factors include:

(1) the nature and source of the prejudicial matter; (2) the number of jurors exposed to the influence; (3) the weight of the evidence properly before the jury; and (4) the likelihood that curative measures were effective in reducing the prejudice.

Id.

Appellant argues that he was denied due process and a fair trial because of a disturbance that occurred in the courtroom hallway during trial, which appellant characterizes as prejudicial. Although the jury, along with everyone in the courtroom, heard a commotion in the hallway, the trial court explained in its denial of a motion for a new trial that the jury could not see the actors, distinguish the actors' voices, or hear the content of their speech. Therefore, we cannot conclude that the nature and source of this incident were prejudicial.

Even if the jurors speculated that the incident was related to this case, the curative measures that the trial court took were effective in eliminating any possibility of prejudice to the jury. The trial court immediately excused the jury to the jury room. After, the trial court responded to the incident by: (1) instructing the jury that the disturbance had nothing to do with the case and that law enforcement was handling it; (2) instructing the jury neither to speculate about the disturbance nor to let it affect their consideration of the case in any way; (3) stating to the jury that it is "critical to the parties that in order for you to be fair to them that you concentrate on this case and not let some outside consideration impinge upon your deliberations"; and (4) assuring the jury that law enforcement would continue to see to the safety and security of everybody in the courtroom. Because jurors are presumed to follow instructions, there is no evidence that the hallway disturbance was at all prejudicial or had any impact on appellant's right to a fair trial. See State v. James, 520 N.W.2d 399, 405 (Minn. 1994) ("Jurors are presumed to follow instructions." (citation omitted)).

 

II.

"Rulings on evidentiary matters rest within the sound discretion of the trial court." Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984) (citation omitted). "This court will not reverse a trial court's admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown." State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988) (citation omitted).

Appellant argues that the trial court denied appellant his right to testify in his own defense because it ruled that appellant's "juvenile adjudications" would be admissible for impeachment under Minn. R. Evid. 609. Appellant admits that North Carolina treated the adjudications at issue as adult offenses; but appellant was 16 at the time of the offenses, and therefore, appellant argues, under Minn. R. Evid. 609(d), the offenses were not admissible.

Minn. R. Evid. 609(d) provides that:

Evidence of juvenile adjudications is not admissible under this rule unless permitted by statute or required by the state or federal constitution.

Appellant's North Carolina adjudications, however, were adult convictions. Because they were not juvenile adjudications, the trial court did not abuse its discretion by ruling that appellant could be impeached with the North Carolina felony convictions. Additionally, under Minn. Stat. § 260.125, subd. 1 (1996), persons as young as 14 may be certified for trial as adults.

 

III.

The appointment of an interpreter for a witness at trial rests within the discretion of the trial court. State v. Saldana, 310 Minn. 249, 252, 246 N.W.2d 37, 39 (Minn. 1976). When evaluating a contention that translation errors in the testimony at trial denied an appellant his procedural right to a fair trial, this court applies a standard that "asks whether the translation of trial testimony was ‘on the whole adequate and accurate.'" State v. Her, 510 N.W.2d 218, 222 (Minn. App. 1994) (quoting State v. Mitjans, 408 N.W.2d 824, 832 (Minn. 1987)), review denied (Minn. Mar. 15, 1994).

The trial court appointed a translator for the victim, who is Somali. Appellant argues that the use of a translator was unnecessary and that the translation was "wholly inadequate." Although appellant has the burden of proving that an interpretation was inadequate, appellant has failed to identify any mistranslations. See id. (defendant's burden to prove on appeal that interpretation was inadequate). Appellant admits in his reply brief that it was not that particular words or phrases were improperly translated. Rather, appellant argues that the presence of the interpreter in the trial "only served to symbolize some need for assistance by the witness when in fact no legitimate, proper translation assistance was ever given and certainly never needed" and therefore, effectively denied appellant a fair trial.

Without proving errors in the translation, appellant's only remaining argument is that the use of an interpreter symbolized the victim's need for assistance, which appellant argues was unneeded. Appellant, however, did not object at trial to the appointment of the interpreter, and therefore, we decline to address the issue further. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (generally, this court will not consider matters not argued and considered in court below). The trial court did not abuse its discretion by appointing an interpreter for the victim.

 

IV.

"‘Trial courts are allowed ‘considerable latitude' in the selection of language in the jury charge.'" State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)).

"In construing a charge to a jury, the jury instructions must be reviewed as a whole. The jury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case."

 

State v. Flores

, 418 N.W.2d 150, 155 (Minn. 1988) (citations omitted).

Appellant was charged under Minn. Stat. § 609.05, subd. 1, liability for crimes of another, which provides:

A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.

With regard to this charge, the trial court read to the jury the Minnesota Criminal Jury Instruction Guide 4.01, liability for crimes of another. See 10 Minnesota Practice, CRIMJIG 4.01 (1990). During deliberations, the jury sent the trial court a note that, in essence, asked for clarification regarding the aiding and abetting charge. The trial court then repeated CRIMJIG 4.01.

Appellant argues that CRIMJIG 4.01 is cumbersome, confusing, and ambiguous and that the trial court's restatement of CRIMJIG 4.01, without additional explanation, was inadequate and plain error in light of the "prosecution's misstatements of the law" during closing argument. Appellant contends that, in the prosecution's argument that appellant could be found guilty under a theory of liability for the crimes of another, the prosecution made a misstatement of law by making the following statement:

But you don't have to find that this [appellant] had the bat in his hand when it crushed [the victim's] mouth. You have to find he was there and that he somehow aided, somehow assisted in that assault. That is liability for crimes of another. Was he there? Did he aid in some way?

Although appellant did not object at trial, he now repeatedly asserts that this was a misstatement of law that confused the jury without providing an explanation for why this was a misstatement of law.

CRIMJIG 4.01 adequately explains the law and, therefore, the reading of the instruction without a further instruction was not an abuse of discretion.

 

V.

Appellant argues that the trial court erroneously instructed the jury that a violation of Minn. Stat. § 609.71 (the riot statute) was a general-intent crime.

 

The difference between general-intent and specific-intent crimes is that:

General intent requires only that the defendant engaged intentionally in specific, prohibited conduct. In contrast, specific intent requires that the defendant acted with the intention to produce a specific result * * * .

State v. Orsello

, 554 N.W.2d 70, 72 (Minn. 1996) (citations omitted).

Minn. Stat. § 609.71, subd. 2, in relevant part, provides:

When three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property, each participant who is armed with a dangerous weapon or knows that any other participant is armed with a dangerous weapon is guilty of riot second degree[.]

 

Appellant has failed to demonstrate error in the instruction. In fact, the court's instructions are virtually identical with the language of both the statute and CRIMJIG 13.75 and, therefore, no error was committed. See 10 Minnesota Practice, CRIMJIG 13.75 (Supp. 1998).

 

VI.

An appellate court

"reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion."

Hodgson v. State

, 540 N.W.2d 515, 517 (Minn. 1995) (quoting Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992)). An evidentiary hearing is "‘not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief.'" Id. (quoting Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990)). "The petitioner's allegations must be ‘more than argumentative assertions without factual support.'" Id. (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971)).

In his petition for postconviction relief, appellant requested that

the court convene an evidentiary hearing to allow [appellant] and the State to supplement and clarify the record concerning the melee or brawl during the closing argument and with regard to the jurors questions and concerns regarding their safety that were directed to the court after the return of the verdicts.

The trial court denied the petition, finding that "[appellant] has failed to allege facts, which, if proven, would entitle [appellant] to any relief." We agree and, therefore, the trial court did not abuse its discretion in denying appellant's petition for postconviction relief.

 

VII.

The decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981), rev'd on other grounds, State v. Givens, 544 N.W.2d 774 (Minn. 1996). An upward departure is within the sentencing court's discretion only if "substantial and compelling" aggravating circumstances are present. Id.

The trial court sentenced appellant to 135 months, a 25-month upward departure from the presumptive guideline sentence of 110 months. The court provided three factors in support of its decision to depart upward: (1) the vulnerability of the victim, age 12; (2) appellant participated in this crime with a group of three or more persons; and (3) the particular cruelty to the victim, which resulted in the loss of eight teeth.

Appellant argues that the second and third reasons provided by the court for the upward departure are factors that underlie the charges and, therefore, cannot be a basis for departure. It is an abuse of discretion for the court to rely on conduct that underlies the charge as a basis for departure. State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996). But, even if the reasons given are improper or inadequate, the departure should be affirmed if there is sufficient evidence in the record to justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

The vulnerability of the victim due to age is an aggravating factor that supports an upward sentencing departure. Minn. Sent. Guidelines II.D.2.b.(1). "Generally, when aggravating circumstances are present, the upper limit on a durational departure is double the Sentencing Guidelines maximum presumptive sentence duration." State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (citation omitted). Here, there is less than a 25 percent upward departure and, therefore, the vulnerability of the victim due to age is sufficient to support departure.

Appellant argues that the vulnerability of the victim due to age as an aggravating factor requires that the vulnerability was "known or should have been known" to appellant and that the victim appeared older. The trial court apparently concluded that appellant should have known that the victim was young, and we cannot say that this was an abuse of discretion.

Respondent filed a motion to strike page A-8 of the appendix to appellant's brief on the ground that it relies on a review of audiotape recordings of the victim's testimony. Because the audiotape recordings were not presented to or considered by the trial court, they are not a part of the record on appeal; therefore, respondent's motion to strike page A-8 of the appendix to appellant's brief is granted. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below).

 Affirmed; motion granted.

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

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