Darrick Mytty, by and through Helen Mytty, guardian ad litem, Plaintiff, and Federated Mutual Insurance Company, Intervenor, vs. Dean R. Johnson Construction, Inc., Respondent, Mitchel Anderson, Respondent, Amcon CM, LLC, Defendant, Amcon CM, LLC, Third-Party Defendant, vs. Voson Plumbing, Inc. Third-Party Defendant, Saxton Associates, Inc., Third-Party Defendant, 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This opinion will be unpublished and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
IN COURT OF APPEALS
C1-98-639

State of Minnesota,
Respondent,
 
vs.
 
Tabari NMN Shakir,
Appellant.

Filed February 9, 1999
Affirmed Crippen, Judge

Hennepin County District Court
File No. 97074215

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

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

Bradford S. Delapena, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

 

CRIPPEN,

Judge

Appellant Tabari Shakir contends that the trial court erred in joining for trial a robbery on June 16, 1997, and a separate offense of felon in possession of a pistol arising out of an August 21, 1997, incident. We affirm. Although the circumstances did not permit the trial court to join the charges for trial, the error was harmless in the circumstances of this case.

 

FACTS

In the early afternoon on June 16, 1997, C.S., the owner of Encore Music in South Minneapolis, was sitting inside his store playing guitar. A man entered the store and, after two or three minutes of looking around, pulled a black, semi-automatic pistol from a black backpack that he was carrying. At gunpoint, the man led C.S. behind the counter, frisked him, had him open the till, and told him to crouch down in the corner. The man emptied the till and took C.S.'s wallet. When C.S. was sure that the man was gone, he went to a nearby store and called 911.

C.S. also called 911 on August 21, 1997, when he saw the robber at the bus stop in front of the store. C.S. described the man to the 911 operator as a younger black male wearing a light-colored shirt and cap and carrying a black backpack. After the man boarded a bus, C.S. also gave the operator the bus route and identification numbers and informed the operator that the man had moved to the rear of the bus.

Four officers of the Transit Police stopped the bus and found appellant. They searched appellant and put him in the back of the squad car. As they began to search appellant's backpack, appellant volunteered that there was an unloaded gun in his bag. Inside the bag, the officers found an unloaded, black, semi-automatic handgun and a magazine of bullets. C.S. identified appellant as the robber in a six-man photographic lineup on August 29.

On August 22, 1997, appellant was charged with one count of felon in possession of a pistol (August 21) in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (1998). The complaint was amended on August 26, 1997 to include a charge of aggravated robbery (June 16) in violation of Minn. Stat. §§ 609.245, subd. 1, 609.11 (1998).

Defense counsel argued in pretrial proceedings that the joinder of these two offenses for a single trial was improper. The trial court rejected defense counsel's argument and tried the two charges together. A jury subsequently found appellant guilty of both offenses, and appellant was sentenced to a 58-month sentence for the aggravated robbery and a 21-month concurrent sentence for the felon in possession of a pistol conviction.

 

D E C I S I O N

1. Joinder

Appellant contends that the two charges were not related and that he was entitled under Minn. R. Crim P. 17.03 (1998) to have the offenses separated for trial. The rule provides that before trial, the trial court "shall" sever offenses if (a) they are "not related" or (b) "severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense or charge." Minn. R. Crim. P. 17.03, subd. 3(1).

Acting under this severance rule, the supreme court has determined that courts should examine "how the offenses were related in time and geographic proximity and at whether the actor was motivated by a single criminal objective." State v. Dukes, 544 N.W.2d 13, 20 (Minn. 1996). Although the trial court employed this standard, its application of the standard is not supported by the circumstances of the case. The robbery and the possession of a pistol occurred just over two months apart. The two incidents occurred in the same geographic proximity, but at different times and under different circumstances. The aggravated robbery and the gun possession were similar only in that both involved guns. Finally, the record does not suggest that the actor was motivated by a single criminal objective.

The state contends that the Dukes test, with its reference to time, geographic proximity, and a single criminal objective, represents a determination, albeit in 1996, that is appropriate only under Rule 17.03 before its amendment in 1990. Prior to 1990, a joinder could never occur unless the conduct constituted more than one offense. The comment to the former rule indicated that it was no different than Minn. Stat. § 609.035 (1998) governing the limits on charging a person for conduct that "constitutes more than one offense." For either of those standards, the courts explored the questions of time, geographic proximity and the singularity of the criminal objective. See State v. White, 292 N.W.2d 16, 18 (Minn. 1980) (describing the relationship between Minn. R. Crim. P. 17.03 and Minn. Stat. § 609.035). Thus, as the state alleges, the Dukes court appears to employ a standard no different than the pre-1990 standard. In 1990, Rule 17.03 changed to require severance only if the offenses are "not related." The comment to the amended rule suggests that this is based on ABA standards, which in turn contemplate joinder when cases "share common factual circumstances." ABA Standards of Criminal Justice § 13-2.1 commentary at 12 (1986). Although the state plausibly contends that the language in the 1990 amendment to the rule may have suggested a broader standard for joinder, we have no prerogative to disregard the supreme court's approach in Dukes.

Harmlessness

Appellant acknowledges that, had the trials been severed, evidence that he possessed a gun on August 21 would have been properly admissible in his robbery trial because of the principles of State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965) (other-crime evidence admissible to show motive, to negate mistake, to establish identity, or to show a common scheme or plan). Relying on State v. Wofford, 262 Minn. 112, 114 N.W.2d 267 (1962), appellant contends that it was nonetheless improper to permit evidence that possession of a pistol constituted a crime. In Wofford, the supreme court held that, although it was proper for the prosecution to elicit testimony that appellant had been in possession of a gun ten days before the assault for which he was on trial, it was prejudicial error for the trial court to have allowed testimony that appellant had been involved in a robbery on that earlier date. Id. at 119, 114 N.W.2d at 272.

We conclude that the joinder of these two charges did not offend the principles of Wofford. Although the jury was told that appellant was "legally prohibited from possessing a pistol," it was not told, as in Wofford, the circumstances of the illegality. Also, as the state suggests, the facts in the June robbery were far more egregious than the evidence of possession of a pistol; whereas, in Wofford, the Spreigl evidence involved an equally egregious crime.

 

Affirmed.