State of Minnesota, Respondent, vs. Andrew Morgan, 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This opinion will be unpublished and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

C9-03-64

           

State of Minnesota,

Respondent,

 

vs.

 

Andrew Morgan,

Appellant.

 

Filed November 4, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. 02045042

 

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, Suite 425, 2221 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

 

 

 

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER,Judge

 

Appellant Andrew Morgan argues that the evidence is insufficient to support his convictions of first-degree burglary, simple robbery, and attempted simple robbery.  Alternatively, appellant argues that even if the evidence is sufficient, the district court abused its discretion when sentencing him because the evidence to prove first-degree burglary was borderline, thus warranting a reduction of his sentence.  Because the evidence is sufficient to support Morgan's convictions and the district court did not abuse its discretion, we affirm.

FACTS

 

            On the evening of June 9, 2002, Joas Yoder and David Griffiths were watching television at Yoder's home when Yoder heard a "clicking noise" coming from the kitchen.  Yoder thought the noise was from a gun.  Yoder then saw appellant Andrew Morgan in the kitchen doorway, and Morgan yelled at Yoder and Griffiths "to get on the f---ing floor and not to f---ing look at him."  Both Yoder and Griffiths got on the floor.  Morgan told Yoder and Griffiths to "get the money out" of their wallets.  Yoder and Griffiths complied.  Morgan then stated, "I know you got some change laying around here somewhere" and told Yoder, "You're coming with me.  We're going to get some change."  Morgan then "grabbed [Yoder] by the back of the collar . . . [and] manhandled [Yoder] up on [his] feet." 

At that point, Yoder noticed that Morgan did not have a gun, but rather had a flashlight.  Yoder "jerked free" from Morgan.  Eventually Morgan moved toward the back door with "the flashlight back" stating, "Back the f--- off."  A scuffle ensued when Yoder "grabbed a hold of [Morgan] and [Yoder and Morgan] went crashing through the house." 

Morgan was charged with one count of first-degree burglary under Minn. Stat. § 609.582, subd. 1(a) (2000); one count of first-degree burglary under Minn. Stat. § 609.582, subd. 1(c) (2000); one count of simple robbery under Minn. Stat. § 609.24 (2000); and one count of attempted simple robbery under Minn. Stat. §§ 609.24, 609.17, subd. 1 (2000).  After a jury trial, Morgan was convicted on all counts and was sentenced to 98 months for the first-degree burglary conviction, 43 months for the simple robbery conviction, and 24 months for the attempted simple robbery conviction, with the sentences to be served concurrently.

Morgan concedes that Yoder's and Griffiths' testimony is true, and does not challenge the other evidence presented or his conviction for first-degree burglary under Minn. Stat. § 609.582, subd. 1(a).  This appeal follows.

D E C I S I O N

 

1.         Standard of Review

Morgan relies on State v. Stewart, 624 N.W.2d 585, 588 (Minn. 2000), to support his argument that this court's review is de novo because a question of statutory construction is involved.  But when a statute speaks for itself, the letter of the law must be followed, and there is no room for judicial construction.  Minn. Stat. § 645.16 (2000); Green Giant Co. v. Comm'r of Revenue, 534 N.W.2d 710, 712 (Minn. 1995).  Courts must give effect to the plain meaning of a statute when the language is clear and unambiguous.  Green Giant, 534 N.W.2d at 712.  The language in Minn. Stat. § 609.582, subd. 1(c) (2000), is clear and unambiguous.  The statute provides that a person is guilty of first-degree burglary with assault when that person

enters a building without consent and commits a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice [and] . . . if the burglar assaults a person within the building or on the building's appurtenant property.

 

Minn. Stat. § 609.582, subd. 1(c).  Morgan fails to show what language in the statute is ambiguous.

Because the statute is unambiguous, the issue is whether the evidence is sufficient to support Morgan's convictions.  Morgan is not contesting the credibility of the state's witnesses or the evidence presented by the state.  Thus, our review is limited to determining whether the evidence is sufficient to support the verdict when the evidence is viewed in the light most favorable to the conviction.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  "[T]he standard for overturning a conviction for insufficiency of the evidence is a high one."  State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).  

2.         First-Degree Burglary With Assault

Morgan does not dispute that he entered a building without consent and committed a crime.  Rather, he argues that the evidence does not show that he also committed an assault.  Assault occurs when "[a]n act [is] done with intent to cause fear in another of immediate bodily harm or death."  Minn. Stat. § 609.02, subd. 10(1) (2000).  The statute requires only that Morgan acted with the intent to cause fear of immediate bodily harm, and intent may be determined from words, actions, and surrounding circumstances.  State v. Kastner, 429 N.W.2d 274, 275 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988). 

Morgan clicked a flashlight switch to simulate the sound the hammer of a handgun might make.  He accompanied that action with threatening demands.  Fearing that Morgan had a gun, Yoder and Griffiths complied with his demands.  Because intent may be inferred from words, actions, and surrounding circumstances, we conclude that it is a reasonable inference that Morgan intended that Yoder and Griffiths would believe he had a gun and that they would comply with his demands for fear of immediate bodily harm. This inference, based on the evidence of Morgan's conduct and words, was sufficient to prove the crime of assault.

Morgan asserts that he was overcharged by comparing the facts of his case with other cases that involved threats of death.  But first-degree burglary with assault can be accomplished by either threats of immediate bodily harm or threats of death.  Minn. Stat. §§ 609.582, subd. 1(c); 609.022, subd. 10(1).  Thus, Morgan's intent to cause fear in another of immediate bodily harm alone constitutes an assault and need not involve a threat of death.  Because the evidence is sufficient to support Morgan's conviction for first-degree burglary with assault, we affirm on this issue.

3.         Simple Robbery and Attempted Simple Robbery

            Morgan also argues that his conduct does not constitute simple robbery or attempted simple robbery in violation of Minn. Stat. §§ 609.17, 609.24 (2000), because he did not take the personal property by using or by threatening the imminent use of force when he clicked a flashlight on and off.

            Minn. Stat. § 609.24 provides:

Whoever, having knowledge of not being entitled thereto, 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 is guilty of robbery.

 

(Emphasis added.)

            "Mere force suffices for the simple robbery statute."  State v. Burrell, 506 N.W.2d 34, 37 (Minn. App. 1993), review denied (Minn. Oct. 11, 1993).  Force is defined as "intentionally inflicting . . . bodily harm upon another."  Id.  Evidence is sufficient to support a conviction of simple robbery when defendant uses force during his attempt to carry away property.  Id. 

Here, Morgan took property from Yoder and Griffiths to which he was not entitled, used force against Yoder and threatened the imminent use of force against Griffiths when he used implied threats to compel his victims to lie on the floor, physically handled Yoder, and held the flashlight over his head.  Thus, this evidence is sufficient to support a conviction for simple robbery and attempted simple robbery. 

4.         Sentencing

Alternatively, Morgan argues that even if his convictions are affirmed, the district court abused its discretion when sentencing him because the evidence to prove first-degree burglary was "borderline," thus warranting a reduction in his sentence.

District courts have broad discretion in sentencing and this court will not modify a sentence that is within the presumptive range established by the sentencing guidelines, unless there are compelling reasons to do so.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Morgan's criminal history score is five.  First-degree burglary with assault is a level-seven severity offense; thus the presumptive sentence for this conviction is 98 months.  Simple robbery and attempted simple robbery are both level-five severity offenses; thus the presumptive sentence for each of these convictions is 43 months.  Minn. Sent. Guidelines IV. 

Here, Morgan was sentenced to 98 months for the first-degree burglary conviction, 43 months for the simple robbery conviction, and 24 months for the attempted simple robbery conviction, to be served concurrently. 

Because the imposed sentences follow the sentencing guidelines and Morgan has shown no compelling reasons for a departure, the district court did not abuse its sentencing discretion, and we affirm on this issue.

            Affirmed.