State of Minnesota, Respondent, vs. Ronny Auburn Doran, 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This opinion will be unpublished and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

C8-03-198

 

State of Minnesota,

Respondent,

 

vs.

 

Ronny Auburn Doran,

Appellant.

 

Filed November 4, 2003

Affirmed

Halbrooks, Judge

 

Clay County District Court

File No. K7021247

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Randall, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his convictions of burglary in the first degree and assault in the second degree.  Appellant contends that the trial court abused its discretion by denying his request to instruct the jury on fifth-degree assault as a lesser-included offense of second-degree assault.  He also argues that the trial court committed plain error affecting his substantial rights by (1) instructing the jury not to consider the lesser offense of trespass unless it first determined appellant was not guilty of burglary in the first degree and (2) not instructing the jury to convict appellant of the lesser offense of trespass if it had a reasonable doubt as to whether appellant was guilty of trespass or burglary.  We affirm.

FACTS

            Appellant Ronny Doran and his wife Kathryn spent the afternoon of June 30, 2002 drinking beer in their apartment.  Later that day, they proceeded to Vic's Bar and Grill, where they continued drinking and began arguing.  After about an hour, the couple returned to their apartment.  The argument then escalated to the point that Kathryn decided she needed to leave to let things cool down.

            Kathryn went to the apartment of a neighbor, Thomas Davis.  Appellant and Kathryn would occasionally stop by Davis's apartment to visit with him and borrow a cigarette.  Davis invited Kathryn into his apartment and they talked about the argument.

            About 20 minutes later, appellant burst into Davis's apartment.  Carrying a knife, appellant went directly across the room toward Kathryn and pointed the knife at her.  Davis testified that appellant had rage in his eyes.  Appellant and Kathryn yelled at each other, and appellant held the knife up to Kathryn's neck and said, "If you ever leave me, I'll hunt you down and I'll kill you."  Appellant also threatened to kill himself.  At this point, Davis told them both to get out of his apartment and that if they wanted to kill each other they should do it somewhere else.  Appellant responded that he would cut Davis's throat, too.  As appellant looked toward Davis, Kathryn managed to duck under appellant's arm and run to the door.  After they left, Davis called 911.  When the police arrived, Davis told the officers what had happened, where Kathryn and appellant lived, and that he thought the knife was still in appellant's possession.

            Kathryn ran back to their apartment.  Appellant followed her, locked the apartment door, and turned on the stereo at a high volume level.  Kathryn later testified that they were not talking to each other at that time, but that appellant was still acting "crazy."  She had not seen the knife since she left Davis's apartment, but she believed that appellant still had the knife.  Soon after Kathryn and appellant got to the apartment, Moorhead Police Officers Michael Detloff and Deric Swenson knocked on their door. 

Initially, Kathryn refused to let the officers enter the apartment and denied being at Davis's apartment.  Appellant began arguing with the officers, telling them that they had no right to be there and no right to know his identity.  Both Kathryn and appellant appeared to be very intoxicated.  As voices got louder and Kathryn became concerned that the landlord would hear them, she invited the officers into the apartment. 

The officers explained that they were responding to a report that appellant had been in a neighbor's apartment with a knife.  When asked about a knife, both appellant and Kathryn said, "There is no knife."  But Kathryn gave Officer Detloff permission to look for the knife in the apartment. 

After not finding a knife, Officer Detloff spoke with Kathryn again and, eventually, she disclosed that she thought appellant had the knife in his pocket.  Concerned about Kathryn's safety and their own, the officers testified that they asked appellant to stand up so that he could be searched.  When appellant remained defiant and aggressive, the officers decided that they needed to use non-lethal force.  They shocked appellant twice with a taser, sprayed him with pepper spray, and placed him in handcuffs.  Ultimately, a knife was found not on appellant, but on the couch where he had been sitting.       

Appellant was charged with assault in the second degree in violation of Minn. Stat. § 609.222, subd. 1 (2000), obstructing legal process in violation of Minn. Stat. § 609.50, subds. 1(2), 2(2) (2000), two counts of burglary in the first degree in violation of Minn. Stat. § 609.582, subd. 1(a), (c) (2000), and two counts of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2000).  The jury found appellant guilty on all counts, and the trial court imposed consecutive sentences of 88 months for the burglary in the first degree conviction, 12 months and 1 day for the terroristic threats conviction, and 21 months for the assault in the second degree conviction a total of 121 months and one day.  This appeal follows.

D E C I S I O N

1.         Assault Instruction

 

            Appellant argues that the trial court abused its discretion by refusing to instruct the jury on fifth-degree assault as a lesser-included offense of second-degree assault.  Trial courts are allowed "considerable latitude" in the selection of language for the jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)).  The refusal to give a requested jury instruction lies within the discretion of the trial court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  "The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it."  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted).

            An instruction on a lesser-included offense should be submitted to the jury when "(1) the offense in question is an ‘included' offense; and (2) a rational basis exists for the jury to convict appellant of the lesser offense and acquit him of the greater crime."  State v. Buntrock, 560 N.W.2d 383, 386 (Minn. 1997).  An "included" offense is defined as "[a] lesser degree of the same crime."  Minn. Stat. § 609.04, subd. 1 (2000).  Because fifth-degree assault is a lesser degree of second-degree assault, it is an included offense.  Thus, the issue is whether a rational basis existed for the jury to convict appellant of fifth-degree assault and acquit him of second-degree assault.   

            Under Minn. Stat. § 609.224, subd. 1 (2000), a person is guilty of fifth-degree assault, a misdemeanor, if he "(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another."  Under Minn. Stat. § 609.222 (2000), whoever assaults another with a dangerous weapon is guilty of assault in the second degree.  The significant difference between the two crimes is the dangerous-weapon element. 

            Both Kathryn and Davis testified at trial that appellant burst into Davis's apartment, brandished a knife, and threatened to kill them.  The police confirmed that they found a knife where appellant had been sitting after this incident.  In contrast, appellant testified that he went to Davis's apartment to find Kathryn, but he denied threatening Kathryn or Davis or having a knife in his possession.  According to appellant, he asked Kathryn why she left the bar without him, borrowed a cigarette from Davis, smoked it, and then walked Kathryn home. 

            It is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  Here, there is conflicting testimony as to whether appellant threatened to kill Davis and Kathryn and whether he had a knife when he entered Davis's apartment.  Appellant's defense was a complete denial of any assault.  Nevertheless, appellant argues that the jury could have credited the portion of his testimony that he did not have a knife in his possession, but also concluded that appellant threatened Kathryn and Davis in Davis's apartment.  An instruction on a lesser-included offense is not precluded merely because a defendant's testimony does not support a theory of guilt for the lesser offense.  State v. Brocks, 587 N.W.2d 37, 40 (Minn. 1998).  But the record on the whole must provide a rational basis for "acquitting the defendant of the charged offense and convicting him of the lesser offense."  Id. (citing State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994)).  Based on this record, we conclude that no rational basis existed for the jury to convict appellant of fifth-degree assault and acquit him of second-degree assault.  Therefore, the trial court did not abuse its discretion by refusing to instruct the jury on fifth-degree assault.  

 

2.         Trespass and Burglary Instructions

 

            At appellant's request, the trial court submitted the offense of trespass to the jury as a lesser-included offense of burglary.  Appellant argues that the trial court erred by instructing the jury not to consider the lesser offense of trespass unless it first determined that appellant was not guilty of burglary in the first degree.  Appellant further contends that the court erred by not instructing the jury to convict appellant of trespass if it had a reasonable doubt about which offense he committed.  We note that appellant did not raise objections to the instructions at trial.  A defendant's failure to object to an instruction before it is given to the jury generally constitutes a waiver of the right to appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  "Nevertheless, a failure to object will not cause an appeal to fail if the instructions contain plain error affecting substantial rights or an error of fundamental law."  Id.  If there is a plain error affecting substantial rights, this court assesses "whether it should address the error to ensure fairness and the integrity of the judicial proceedings."  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

            CRIMJIG 3.20, the jury instruction on "lesser crimes," states:

The law provides that upon the prosecution of a person for a crime, if the person is not guilty of that crime, the person may be guilty of a lesser crime.

 

                        . . . .

 

                        The presumption of innocence and the requirement of proof beyond a reasonable doubt apply to these lesser crimes.  If you find beyond a reasonable doubt that the defendant has committed each element of the lesser included crime, but you have a reasonable doubt about any different element of the greater crime, the defendant is guilty only of the lesser crime.

 

10 Minnesota Practice, CRIMJIG 3.20 (1999). 

            The comments to CRIMJIG 3.20 caution that courts "should be careful not to indicate any order in which the crimes should be considered.  It should not instruct the jury to consider the lesser crimes only if it finds the defendant not guilty of the charged offense."  Id.  The Minnesota Supreme Court has also said that "it is important that the trial judge should not in any way impose his views as to the order of procedure to be followed by the jurors."  State v. Dahlstrom, 276 Minn. 301, 311, 150 N.W.2d 53, 61 (1967) (finding no prejudicial error).  Because the trial court instructed the jury to only consider the offense of trespassing if the jury first determined that appellant was not guilty of burglary in the first degree, we conclude that the court committed plain error.  See State v. Burg, 648 N.W.2d 673, 677 (Minn. 2002) (stating that plain error exists if an error is clear or obvious). 

We next consider whether the error affected appellant's substantial rights.  Substantial rights are affected if an error was prejudicial and affected the outcome of the case.  Griller, 583 N.W.2d at 741.  An error is prejudicial if there is a "reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury."  Id.  The defendant bears the burden of persuasion with regard to this issue, and the burden is a heavy one.  Id. 

            The main difference between the offense of trespassing and the offense of first-degree burglary are that the burglary requires the intent to commit or the commission of a crime in the dwelling and either (1) the presence of another person, or (2) the possession of a dangerous weapon, or (3) an assault committed in the building.  Compare Minn. Stat. § 609.605, subd. 1(b)(4) (2000), with Minn. Stat. § 609.582, subd. 1(a) (2000).  Both offenses require the state to prove a defendant's entry without consent.  That element was disputed at trial as were the issues of a weapon and appellant's intent to commit or his commission of a crime in Davis's apartment.  But there was no dispute that Kathryn and Davis were present when appellant entered Davis's apartment.  Based on the evidence, appellant has not persuaded us that the court's error was prejudicial and had a significant effect on the jury's verdict.

            Appellant further argues that the trial court committed plain error affecting substantial rights by not instructing the jury to convict appellant of the lesser offense of trespass if it had a reasonable doubt as to whether appellant was guilty of trespass or burglary.  Trial courts have "considerable latitude" in crafting jury instructions.  Gray, 456 N.W.2d at 258. 

            Minn. Stat. § 611.02 (2000) states:

            Every defendant in a criminal action is presumed innocent until the contrary is proved and, in case of a reasonable doubt, is entitled to acquittal; and when an offense has been proved against the defendant, and there exists a reasonable doubt as to which of two or more degrees the defendant is guilty, the defendant shall be convicted only of the lowest.  

 

            We agree with appellant's assertion, raised post-verdict, that it would have been appropriate for the trial court to give an instruction in accordance with Minn. Stat. § 611.02.  See Dahlstrom, 276 Minn. at 310, 150 N.W.2d at 60 (stating that "the jury should be instructed specifically with respect to the provisions of [Minn. Stat. §] 611.02.").  But appellant has presented no evidence demonstrating how the failure to give the instruction was prejudicial to him or affected the outcome of the case.  The record shows that the trial court thoroughly instructed the jury regarding the burden of proof.  The court also explained that trespassing is a lesser-included offense of burglary.  Based on this record, appellant is unable to meet the heavy burden of showing that the failure to give the instruction at issue was prejudicial and affected the outcome of the case.  Thus, we conclude that the trial court did not commit plain error affecting substantial rights by not instructing the jury to find appellant guilty of the lesser-included offense of trespassing if it had a reasonable doubt as to whether appellant was guilty of trespassing or burglary. 

3.         Appellant's Pro Se Claims

            Appellant argues that the trial court abused its discretion by imposing a sentence with consecutive terms.  The imposition of a sentence with consecutive terms will not be overturned absent a clear abuse of discretion if consecutive sentencing is permissive.  State v. Smith, 541 N.W.2d 584, 590 (Minn. 1996).  "Consecutive sentences may be imposed for crimes against different persons, but the multiple sentences must not unfairly exaggerate the criminality of the defendant's conduct."  Id.  Under the Minnesota Sentencing Guidelines, consecutive sentences are permissive and do not constitute a sentencing departure when a defendant has "[m]ultiple current felony convictions for crimes against persons."  Minn. Sent. Guidelines II.F.2.  Here, appellant has multiple felony convictions that were committed against multiple persons, and the imposition of multiple sentences does not unfairly exaggerate the criminality of his conduct.  We therefore conclude that the trial court did not abuse its discretion in imposing a sentence with consecutive terms. 

            Appellant states in his pro se brief that this forum is not the proper one to address several of his claims and that this court should stay proceedings to allow for a proper record to be developed in a postconviction hearing.  The claims submitted by appellant's counsel and appellant's pro se sentencing claim are properly before this court on appeal.  But we preserve appellant's claims that he received ineffective assistance of counsel, that the trial transcripts are incorrect and were altered, and that the courtroom was improperly closed for appellant to pursue in a petition for postconviction relief, if he so chooses.    

            Affirmed.