State of Minnesota, Respondent, vs. Ramon D. Smith, Appellant.

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State of Minnesota, Respondent, vs. Ramon D. Smith, Appellant. A06-500, Court of Appeals Unpublished, August 21, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-500

 

 

State of Minnesota,

Respondent,

 

vs.

 

Ramon D. Smith,

Appellant.

 

 

Filed August 21, 2007

Affirmed in part, vacated in part, and remanded

Halbrooks, Judge

 

Dakota County District Court

File No. KX-04-003218

 

 

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

 

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant was convicted of aiding and abetting attempted first-degree murder (drive-by shooting); aiding and abetting attempted second-degree murder; aiding and abetting drive-by shooting; second-degree assault with a dangerous weapon; and fleeing police in a motor vehicle.  Appellant argues that his convictions of aiding and abetting attempted first-degree murder (drive-by shooting) and drive-by shooting must be vacated because there is insufficient evidence to prove that he had "just exited" a vehicle and that the district court abused its discretion by admitting testimony about appellant's alleged gang ties.  Appellant makes additional arguments in his pro se supplemental brief.  Because the district court did not abuse its discretion by admitting testimony about appellant's alleged gang ties, we affirm in part.  But because we conclude that the evidence is insufficient to sustain the convictions involving the element of a drive-by shooting, we vacate those convictions and remand to the district court for resentencing on the remaining convictions.

FACTS

            Appellant Ramon D. Smith was with two friends in a Ford Explorer on the evening of October 7, 2004.  When they stopped for gas at the Oasis Market in Burnsville, they encountered Derrick Tallman, who asked one of appellant's friends if he wanted to buy some marijuana.  While the friend declined, he said that he would ask someone who was with him.  When Tallman learned that the other individual was interested, Tallman walked to his nearby apartment to get the marijuana.  He returned to the convenience store, riding as a passenger in a minivan driven by a friend.  The minivan parked alongside the Explorer.

            Appellant then got out of the Explorer and approached Tallman's open window.  Tallman was holding a bag of marijuana.  Appellant had a digital scale and wanted to weigh the marijuana, but Tallman objected.  In response, appellant grabbed the bag of marijuana, placed a handgun against Tallman's right temple, and demanded his money and jewelry.  Tallman told appellant to go ahead and shoot.  As the minivan driver placed the vehicle in reverse and then accelerated rapidly, Tallman heard several gunshots.  The minivan then crashed into a nearby tree. 

            Several people at the scene called 911 to report the incident.  As Burnsville Police Officer Daniel M. Anderson was responding to the call, he saw a green Ford Explorer leaving the area.  Officer Anderson followed the Explorer, eventually turning on his car's lights and siren.  When the vehicle stopped, appellant bolted from the vehicle and ran down a hill into a pond.  Officer Anderson drew his gun and ordered appellant to come out.  After several warnings, appellant emerged and surrendered.  Officer Anderson handcuffed and searched him.

            Nine rounds of .32 caliber ammunition were found in appellant's pocket.  In the Explorer, officers found a case and instructions for a .32 caliber Beretta semiautomatic handgun and a digital scale.  A .32 caliber Beretta Tomcat handgun was later found in the pond about 50 feet from the place where appellant had entered the water.  The gun had one live round in the chamber and one live round in the clip.  Subsequent ballistics tests confirmed that the rounds fired at the minivan had been fired from that gun.  On the grass near where appellant entered the pond, an apartment maintenance worker later found a small bag of a substance determined to be marijuana. 

            Five cartridge casings of .32 caliber ammunition were found on the Oasis Market parking lot near a skid mark from the minivan's path.  The minivan's back window was shattered and a bullet that was consistent with the type of ammunition fired from the gun was imbedded in the dashboard.  The minivan's right rear tire had a puncture that was consistent with a bullet hole.  Swabs taken from appellant's hands that were tested showed a microscopic particle of gunshot residue.

            Appellant was charged with second-degree assault with a dangerous weapon under Minn. Stat. § 609.222, subd. 1 (2004) and fleeing a police officer in a motor vehicle under Minn. Stat. § 609.487, subd. 3 (2004).  The state subsequently amended the complaint to include: aiding and abetting attempted first-degree murder (drive-by shooting) under Minn. Stat. § 609.185(a)(3) (2004); aiding and abetting second-degree murder under Minn. Stat. § 609.19, subd. 1(1) (2004); and aiding and abetting drive-by shooting under Minn. Stat. § 609.66, subd. 1e(b) (2004).  The amendment also altered the second-degree-assault charge to charge appellant with aiding and abetting under Minn. Stat. § 609.05 (2004).  The jury convicted appellant of all charges.  The district court sentenced appellant to 180 months in prison for attempted first-degree murder (drive-by shooting) and one year and one day for fleeing a police officer, to be served concurrently.  This appeal follows.


D E C I S I O N

I.

            Appellant argues that the evidence is insufficient to support the convictions of aiding and abetting attempted first-degree murder (drive-by shooting) and drive-by shooting because he had not "just exited" the Explorer before shots were fired.  The state contends that the verdict should be affirmed because the incident lasted a very short time and because the Explorer was used to facilitate appellant's presence at and escape from the scene.  We review a question of law or statutory interpretation de novo.  State v. Coauette, 601 N.W.2d 443, 445 (Minn. App. 1999), review denied (Minn. Dec. 14, 1999).

            First-degree murder from a drive-by shooting is defined as the causing of "the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit . . . a drive-by shooting."  Minn. Stat. § 609.185(a)(3) (2004).  A drive-by shooting is defined as occurring when "[w]hoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building."  Minn. Stat. § 609.66, subd. 1e(a) (2004).

            Both parties cite State v. Lewis,638 N.W.2d 788 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002), in support of their arguments.  In Lewis, this court addressed the time element involved in a drive-by-shooting charge, affirming the underlying conviction.  Lewis, 638 N.W.2d at 790, 793.  On review, we stated that, based on the testimony of three eyewitnesses, "[t]he record amply supports the jury's finding that Lewis drove up to the park, jumped out of a brown mini-van, ran to the occupied basketball court and began shooting within one to two minutes from the time he exited the mini-van."  Id. at 791.  "He then retreated to the vehicle and drove away."  Id.  We noted that "[t]he statute does not define the phrase ‘having just exited from the motor vehicle.'"  Id. (quoting Minn. Stat. § 609.66, subd. 1e).  But we determined that "the meaning of the phrase is clear and requires no interpretation."  Id.  Hence, we construed the phrase "having just exited a motor vehicle" as requiring "the immediate action of shooting following the exiting from an automobile."  Id.    

            Here, the only testimony regarding the time element came from Tallman.  No one else from either vehicle testified.  Tallman testified that appellant got out of the Explorer and approached the minivan's open passenger window where Tallman was seated.  The following exchange occurred on direct-examination: 

Q.       Were you still seated in there?

 

A.       Yes.

 

Q.       Where did you have the marijuana?

 

A.       In my hand.

 

Q.       What did you do when he walked up to your window?

 

A.       Pulled out the weed.

 

Q.       Did you say anything to him?

 

A.       I said, what's up.

 

. . . .

 

Q.       Did he say something back to you, then?

 

A.       Um, I'm [not] sure.  Like, what you working with, or I don't know, something like that.

 

Q.       So something was said, you are just not sure?

 

A.       Yeah.

 

Q.       What is the next thing that happened?

 

A.       He pulls out a scale.

 

Q.       Okay.

 

A.       And tries to put it on something, whichlike the window, the window comes out of the door.

 

Q.       Okay.

 

A.       But it won't stay on there, so it was kind ofI was kind of thinking, like, why is heyou know what I'm saying?

 

. . . .

 

Q.       So after he brought out the scale, did you say something or do something?

 

A.       Yeah. I was like whywhy do we need a scale?

 

Q.       What did he say?

 

A.       He said, so we can weigh it.  I said it weighsit weighs right.  It's over, if anything.

 

Q.       Okay. What's the next thing that happened?

 

A.       He snatches it, snatches the bag of weed.

 

Q.       Where did he snatch it from?

 

A.       My hand.

 

Q.       And what happened after that?

A.       He kind of like stumbled back and pulled the gun out . . . .

 

. . . .

 

Q.       What did he do with the gun?

 

A.       He put it to my head.

 

Q.       Was it actually touching your head?

 

A.       Yes.

 

. . . .

 

Q.       Did either one of you say something?

 

A.       Um, he said he wanted my jewelry and money.

 

. . . .

 

Q.       What did you say?

 

A.       I told him no.

 

. . . .

 

Q.       Was there more conversation?

 

A.       No.

 

Q.       What happened?

 

A.       Um, we put it in reverse and tried to drive, and we hit a tree.

 

. . . .

 

Q.       What was happening, or was there anything happening as you were driving away, trying to drive away?

 

A.       Yes.  Gunshots, gunfire.

 

           In contrast to Lewis, where three independent eyewitnesses testified similarly as to the sequence of events and the timing of the shots after the defendant got out of the vehicle, this record is silent as to the amount of time that elapsed between appellant's exit from the Explorer and his firing shots at the minivan.  But it is certain that an aborted drug sale occurred between the two.  While it is not clear from this record whether or not appellant got out of the Explorer with the intent to shoot Tallman or decided to shoot once he interacted with him, the evidence does not support the drive-by-shooting element of "just exiting" the vehicle.  Therefore, we conclude that the convictions of aiding and abetting attempted first-degree murder (drive-by shooting) and drive-by shooting must be vacated.  On remand, the district court should resentence appellant based on his other convictions.

II.

            Appellant argues that the district court abused its discretion by permitting Tallman to testify that he was afraid of appellant and appellant's associates.  Before trial, the district court addressed appellant's motion to preclude the state from referring to appellant's alleged gang ties.  The district court ruled that the reference would only be admissible if appellant "opened the door" or the evidence was introduced other than in the state's case-in-chief.  "Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). 

            On direct examination, Tallman testified in response to the prosecutor's examination that he and appellant were in the same room at the jail and had a conversation in which appellant advised Tallman, when asked about the events in the minivan, "to just be quiet, and we'llwe'll both go home."

Q.        All right.  Were you ever threatened?

 

A.        Um, yeah.  Yeah, butYeah.

 

Q.        Okay.  In what way?

 

A.        It's like little threats like, I don't know.  I don't know how to explain it really.

 

Q.        Were there any comments made about your mother or your family?

 

A.        Yes.

 

[APPELLANT'S COUNSEL]:  Objection, Your Honor, leading.

 

THE COURT:  Overruled.  You may answer.

 

            . . . .

 

Q.        Is that by [appellant] again?

 

A.        Yes.

 

Q.        What did he say?

 

A.        I can't really remember the exact words, but something about where my mom lives.

 

Q.        And how did you understand that?

 

A.        I took it real bad.

 

. . . .

 

Q.        How did you understand what he was saying to you?  What did it mean?

 

A.        LikeLike he'll find where I live.

 

Q.        Okay.  Did you take that as a threat?

 

A.        Yes.

 

Q.        And is that in the same conversation about you testifying in this case?

 

A.        Yes.

 

. . . .

 

Q.        Did [appellant] say anything about knowing where your mom lived?

 

A.        Yes.

 

Q.        Did he know the address?

 

A.        I don't know.  I don't know.  Anybody can find it out.

 

When his memory was refreshed with a jail report, Tallman remembered that appellant knew his mother's address.

            Appellant's attorney on cross-examination asked Tallman whether appellant "made a threat to you and told you he knew where your mother lived" while Tallman and appellant were in jail.  Tallman testified that no one had threatened or harmed him or his mother in the past year.

            On redirect, appellant testified.

Q.        . . . .

                        First of all, are you afraid of [appellant] and what he might do as a result of you testifying?

 

A.        Not so much, not so much that.

 

Q.        Okay.

 

A.        I just want to have no problems with my mom basically.

 

Q.        Let me reask the question.

                        Are you afraid of [appellant] not only because of him but because of people he associates with?

 

[APPELLANT'S ATTORNEY]:  Objection, Your Honor.  Leading.

 

THE COURT:  Overruled.  You may answer.

 

A.        The people he associates with.

 

            Based on our review of the record, we do not agree that Tallman's testimony regarding his concerns about appellant's "threats" violated the district court's pretrial ruling.  The exchanges with Tallman by both counsel on this topic were relatively brief and, more importantly, did not produce a clear statement that appellant had any gang affiliation.  We therefore conclude that the district court acted within its discretion by its rulings.

III.

            In his pro se supplemental brief, appellant makes several arguments for the first time on appeal.  He contends that a new trial is necessary because the charge of aiding and abetting attempted first-degree murder in the amended complaint required a grand-jury indictment.  An offense punishable by less than life imprisonment may be prosecuted by indictment or by a complaint.  Minn. R. Crim. P. 17.01.  Because an attempted-first-degree-murder conviction does not carry a sentence of life imprisonment, a grand-jury indictment was not necessary.

            Appellant also alleges that Tallman gave perjured testimony.  Tallman's testimony differed from his original story to the police.  Tallman's testimony was often inconsistent, and both attorneys commented to the jury on his credibility.  But we leave credibility determinations to the jury.  State v. Kramer, 668 N.W.2d 32, 37 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003). 

            Appellant further claims that he left the scene but did not flee from the police.  Minnesota law defines "flee" as "to increase speed, extinguish motor vehicle headlights or taillights, refuse to stop the vehicle, or use other means with intent to attempt to elude a peace officer following a signal given by any peace officer to the driver of a motor vehicle."  Minn. Stat. § 609.487, subd. 1 (2004).  Here, appellant drove a vehicle without its headlights at night, refused to pull over or stop, and increased his speed after Officer Anderson activated his squad car's lights and siren.  The evidence is sufficient to prove that appellant fled from police. 

            Finally, appellant argues that he had ineffective assistance of counsel, claiming, among other reasons, that his counsel convinced him not to testify.  But appellant was properly questioned on the record to confirm his decision not to testify.  The record does not support appellant's claims.

            Affirmed in part, vacated in part, and remanded.