State of Minnesota, Respondent, vs. Kelvin Jackson, Appellant.

State of Minnesota, Respondent, vs. Kelvin Jackson, Appellant. A06-1001, Court of Appeals Unpublished, August 7, 2007.

This opinion will be unpublished and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

A06-1001

 

State of Minnesota,
Respondent,
 
vs.
 
Kelvin Jackson,
Appellant.

 

Filed August 7, 2007

Affirmed

Wright, Judge

 

Ramsey County District Court

File No. K0-05-3872

 

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Worke, Judge.

 

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

Appellant challenges his conviction of first-degree aggravated robbery, arguing that (1) the district court erroneously admitted evidence of the victim's pretrial identification of appellant; (2) the evidence is insufficient to prove that appellant was armed with a dangerous weapon; and (3) the evidence is otherwise insufficient to sustain the conviction.  Appellant also challenges his sentence, arguing that (1) the aggravating factors found by the jury do not support the district court's imposition of an upward departure from the presumptive guidelines sentence because they are based on uncharged offenses; and (2) the sentence is disproportionate because it exceeds the presumptive guidelines sentence for the uncharged offenses.  We affirm.

FACTS

Respondent State of Minnesota charged appellant Kelvin Jackson with first-degree aggravated robbery while possessing a dangerous weapon, Minn. Stat. § 609.245, subd. 1 (2004); first-degree aggravated robbery with infliction of bodily harm, Minn. Stat. § 609.245, subd. 1;[1] second-degree aggravated robbery, Minn. Stat. § 609.245, subd. 2 (2004); and first-degree assault, Minn. Stat. § 609.221, subd. 1 (2004).[2] 

At trial, G.W. testified that, on the morning of November 6, 2005, he permitted a young woman to enter his home and use the telephone to report car trouble.  Later that evening, the same woman came to his residence.  As G.W. opened the door for her, a man rushed in and hit G.W. in the eye with a "blunt object" that he believed to be a gun.  G.W. testified that the man hit him at least five times on his head.  During the altercation, the man and woman stole G.W.'s wallet, money, and guns.  G.W. identified Jackson as the male assailant.

            Officer Alesia Metry went to G.W.'s home to investigate the robbery.  Officer Metry prepared a police report that included G.W.'s descriptions of the intruders.  Regarding G.W.'s description of the male intruder, Officer Metry testified as follows:

A.        For the male's height range [G.W.] was very uncertain on the description of the male.  He knew that it was a black male.  And so I [asked] question[s] . . . like, ["W]ell, how tall do you think he was?["]  And he'd say: ["]I'm not sure.["]  ["]Well, do you think that he was as tall as you are[?"]  And [G.W.] would say: ["]Yeah, about the same height.["]

Q.        And is that how you got the weight range then also?

A.        Yeah.  Correct.

. . . .

A.        . . . [G.W.] was very specific on the female['s age range being between 20 to 25].  And when I asked him the age range of the male, he said he was uncertain.  And I said, "Do you think he was about the same age as the female?"  And he said, "[Y]es."

 

G.W. testified that he told Officer Metry the male intruder was approximately five feet seven inches tall and about 25 pounds lighter than G.W.'s weight of 200 pounds.  He also testified that he told Officer Metry the female intruder was in her 20s, but he does not remember saying the same about the male intruder.  G.W. testified that he "probably" told Officer Metry that the male intruder was about 30 years old.

            Delia Watkins, the biological mother of G.W.'s adopted daughter, advised Officers Mark Aldridge and Michael Nye that Jackson and his wife, Stephanie Jackson, matched G.W.'s descriptions of the intruders.  Watkins knew the Jacksons because she had lived in an apartment building where Stephanie Jackson was the caretaker.  The officers went to the Jacksons' apartment, which was approximately one block from G.W.'s home, and found Jackson and Rachel West, who matched the description of the female intruder.  The officers questioned Jackson and West but left when Jackson instructed them to do so.  During a search conducted outside the apartment building, the officers found G.W.'s wallet in a nearby dumpster.  They subsequently arrested Jackson and West.  During a search incident to arrest, officers recovered $100 in cash from West.  G.W. had advised the male intruder during the robbery that one compartment in his wallet contained between $300 and $400 in cash.  G.W.'s son testified that G.W. usually carried between $200 and $300 in cash in his wallet, tucking larger bills inside one portion of his wallet and carrying smaller bills in "the normal section."

            G.W. was hospitalized for an orbital-floor fracture and a laceration on his head.  His treating physician testified that, based on the amount of force required to break a facial bone, "fairly severe force was used."

            The morning after the robbery, Officer Tony Gabriel went to the hospital to show G.W. photographic lineups.  G.W. testified that Officer Gabriel did not tell him that any suspects were in custody or that the lineups contained photographs of the suspects.  But Officer Gabriel contradicted one aspect of this testimony when he testified that he "told [G.W.] that we had some people in custody."  Officer Gabriel showed G.W. a lineup with photographs of six women, including West, and a lineup with photographs of six men, including Jackson.  The age range of the men was approximately 35 to 46 years old.  Officer Gabriel testified that the photographic lineups were based on the suspects' physical characteristics rather than the physical descriptions provided by G.W.  G.W. identified Jackson and West as the intruders.

            At the close of the evidence, the district court dismissed the assault charge for failure to establish a prima facie case.  The jury found Jackson guilty of the remaining charges.  Following the guilt phase of the trial, the district court submitted to the jury the questions regarding several aggravating factors, including whether the robbery occurred in G.W.'s home, whether G.W. sustained multiple blows to the head, and whether G.W. sustained an orbital fracture.  The jury answered each question in the affirmative. 

            The state moved for an upward departure from the sentencing guidelines presumptive sentence based on the jury's findings that the offense occurred in G.W.'s home and that G.W. sustained injuries.  Jackson challenged the propriety of these grounds for a departure, arguing that the state was seeking to punish him for the uncharged offense of burglary and G.W.'s injury is an element of first-degree aggravated robbery with infliction of bodily harm.  Rejecting these arguments, the district court departed from the presumptive guidelines sentence and imposed a sentence of 210 months' imprisonment for first-degree aggravated robbery with a dangerous weapon.  This appeal followed.

 

D E C I S I O N

I.

            Jackson argues that (1) the district court erroneously admitted the unreliable evidence of G.W.'s pretrial identification; (2) the evidence is insufficient to establish that Jackson was armed with a dangerous weapon, as required by Minn. Stat. § 609.245, subd. 1 (2004); and (3) the remaining evidence is insufficient to sustain the verdict.

A.

Jackson contends that the evidence regarding G.W.'s pretrial photographic-lineup identification was inadmissible because the lineup was unreliable.  Generally, "[e]videntiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  However, because the "[a]dmission of identification evidence derived from suggestive identification procedures violates due process," State v. Roan, 532 N.W.2d 563, 572 (Minn. 1995), identification evidence must be excluded if the procedure used to obtain the identification was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification," Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968).  To determine whether a pretrial identification is inadmissible, we first consider whether the procedure used to obtain the identification was unnecessarily suggestive.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).  An identification procedure that influences a witness's identification of the defendant is unnecessarily suggestive.  Id.  The key factor for this determination is "whether the defendant was unfairly singled out for identification."  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  If the procedure was unnecessarily suggestive, the resulting identification is inadmissible unless the identification was reliable under the totality of the circumstances.  Id.

1.

Jackson asserts that the photographic lineup was unnecessarily suggestive because it was based on Jackson's physical characteristics rather than G.W.'s description of the intruder.  But every person in the display need not fit the witness's description exactly.  Seelye v. State, 429 N.W.2d 669, 672 (Minn. App. 1988); State v. Blegen, 387 N.W.2d 459, 463 (Minn. App. 1986), review denied (Minn. July 31, 1986).  Rather, "‘[i]t is sufficient if all the people in the display bear a reasonable physical similarity to the accused.'"  State v. Yang, 627 N.W.2d 666, 674 (Minn. App. 2001) (quoting Seelye, 429 N.W.2d at 672-73), review denied (Minn. July 24, 2001).

Here, the investigating officers focused on Jackson as a suspect because Jackson was with a woman who matched G.W.'s description of the female intruder shortly after the incident and because G.W.'s description of the male intruder corresponded in many respects with Jackson's appearance.  The photographic lineup that G.W. inspected included pictures of Jackson and five other men whose race, skin color, and facial characteristics are substantially similar to those of Jackson.  All of the men depicted in the lineup were between the ages of 35 and 46 years old, as was Jackson, who was 44 years old on the date of the offense.  See State v. Montjoy, 366 N.W.2d 103, 106-07 (Minn. 1985) (holding that lineup was not overly suggestive when ages of lineup participants covered 12-year span).  Because all of the men in the lineup are reasonably similar in physical appearance to Jackson, the photographic lineup was not unnecessarily suggestive.

Jackson also argues that the identification procedure was unnecessarily suggestive because when G.W. viewed the photographs, he knew that a suspect had been arrested.  We have rejected challenges based on the witness's knowledge that a suspect is in custody, observing that a "witness who has been asked to view a photo display has probably already assumed that a suspect has been found and that one of the photos is of that suspect."  State v. Porter, 411 N.W.2d 187, 190 (Minn. App. 1987).

On this record, we conclude that the pretrial identification of Jackson was not unnecessarily suggestive.

2.

Even if the photographic lineup were unnecessarily suggestive, Jackson's challenge to the admission of the evidence of G.W.'s pretrial identification fails because the identification was reliable under the totality of the circumstances.  We consider five factors when determining whether an identification was reliable under the totality of the circumstances: (1) the opportunity of the witness to view the defendant; (2) the degree of attention the witness paid to the defendant; (3) the accuracy of the witness's prior description of the defendant; (4) the degree of certainty the witness demonstrates in identifying the photograph; and (5) the time between the crime and the photographic lineup.  Ostrem, 535 N.W.2d at 921. 

G.W. had a significant opportunity to view the male intruder, who was in G.W.'s home for five to ten minutes.  Immediately after entering the room, the male intruder and G.W. were in a face-to-face altercation.  The male intruder remained with G.W. while the female intruder retrieved guns and money from other areas in the home.  After the intruders fled, G.W. gave Officer Metry a description that identified the intruder's race and approximate weight, height, and age, which addresses the second factorthe degree of attention that G.W. gave to the male intruder.  Regarding the third factor, because the record does not include evidence as to Jackson's actual height and weight at the time of the incident, we cannot determine whether G.W.'s description of the male intruder's height and weight is reasonably similar to Jackson's at the time of the offense.  And although Officer Metry's report states that G.W. estimated that the male intruder was in his 20s, Officer Metry testified that G.W. was uncertain in this aspect of the description.  But as to the fourth factor, the evidence establishes that, as G.W. was viewing the photos in the lineup, Officer Gabriel could hear G.W. say, "That's not the guy.  That's not the guy."  G.W. testified that he was "sure" in his selection of Jackson's photograph, and he was equally confident that he could identify both the male and the female intruder.  Finally, G.W. viewed the photographic lineups at between 9:00 a.m. and 10:00 a.m., which was only 12 to 13 hours after the offense.

            Jackson also argues that the pretrial identification is unreliable because G.W.'s medical condition when he identified Jackson was unknown.  This argument, however, is relevant to the weight of the evidence, not its admissibility.  Officer Gabriel testified that G.W. was "slightly groggy" during the pretrial identification process, but based on the officer's training and experience, he concluded that G.W. was not too impaired to make a valid identification from the photographic lineup.  G.W. also testified that he was confident in his selections.   

Taken together, the facts demonstrate that G.W.'s pretrial photographic-lineup identification of Jackson was reliable under the totality of the circumstances.  Therefore, the district court's admission of this evidence was proper.

B.

            Jackson also claims that the evidence is insufficient to prove beyond a reasonable doubt that he was armed with a dangerous weapon, as required by Minn. Stat. § 609.245, subd. 1.  Jackson's argument, however, is founded on a misconstruction of the law.  Under section 609.245, subdivision 1, it is unlawful to commit a robbery while "armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon."  Absent proof of a dangerous weapon, the dangerous-weapon element is satisfied if the defendant was armed with an article that was used in a manner to cause the victim to reasonably believe that the article is a weapon capable of producing great bodily harm.  Minn. Stat. §§ 609.245, subd. 1, 609.02, subd. 6 (2004). 

            The evidence before the jury unequivocally establishes that Jackson was armed with a "blunt object," which he used in a manner that caused G.W. to reasonably believe that it was a "handgun."  Moreover, this "blunt object" caused "great bodily harm" to G.W. in the nature of a fractured orbital floor, numbness in his face, severe lacerations to his scalp, and permanent scarring.  See Minn. Stat. § 609.02, subd. 8 (2004) (defining "great bodily harm" to include bodily injuries that cause serious permanent disfigurement, permanent or protracted loss or impairment of bodily organ's function, or other serious bodily harm).  Thus, there is more than ample evidence to prove beyond a reasonable doubt that Jackson committed the robbery while armed with an "article used . . . in a manner to lead [G.W.] to reasonably believe it to be a dangerous weapon."  Minn. Stat. § 609.245, subd. 1.

C.

            Lastly, Jackson argues that the evidence is insufficient to sustain the conviction because there is neither physical evidence nor a motive linking him to the crimes charged.  In advancing this argument, Jackson relies on the evidence that the credit cards stolen from G.W. were used after the police arrived at Jackson's apartment, physical evidence was not found in Jackson's apartment, and Jackson's fingerprints were not found in G.W.'s home.  When considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach a guilty verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  In doing so, we assume that the jury believed the evidence supporting the state's theory of the case and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). 

Here, G.W.'s pretrial and in-court identification of Jackson are direct evidence in support of the conviction.  There also is substantial circumstantial evidence, which is entitled to the same weight as direct evidence but is subject to stricter scrutiny.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  This circumstantial evidence includes Jackson's presence with West, whom G.W. also identified shortly after the offense was committed; the recovery of G.W.'s wallet outside Jackson's apartment building; and West's possession of a large amount of cash after the robbery.  When viewed in the light most favorable to the conviction, the evidence, taken as a whole, was more than sufficient to support the guilty verdict.

II.

            Jackson also challenges his sentence, arguing that the district court's imposition of a sentence that constitutes an upward durational departure from the Minnesota Sentencing Guidelines presumptive sentence was erroneous for two reasons.  First, Jackson argues, the sentence is not based on conduct underlying the offense of which Jackson was convictedfirst-degree aggravated robbery with a dangerous weapon.  Rather, it was based on the uncharged offenses of burglary and assault.  Second, Jackson argues, the sentence is disproportionate because it exceeds the presumptive sentences for those uncharged offenses. 

We review a district court's decision to depart from the presumptive guidelines sentence for an abuse of discretion.  Taylor v. State, 670 N.W.2d 584, 588 (Minn. 2003).  Reversal is warranted if the reasons for the departure are improper or there is insufficient record evidence to justify an aggravated sentence for the offense of which the defendant was convicted.  Id.

A.

            Jackson's reliance on Taylor in support of his argument that the upward departure is not based on conduct underlying the offense of conviction is misplaced.  The Taylor court held that, to justify an upward departure, the district court must rely on evidence that the defendant committed the offense in a particularly serious way.  Id.  In Taylor, the state charged the defendant with one count of first-degree criminal sexual conduct, alleging a single incident of sexual abuse on March 16, 2001.  Id. at 585.  During the factual inquiry in support of the guilty plea, the defendant also admitted that he had committed the same conduct on a different date.  Id. at 585-86.  The district court departed from the presumptive guidelines sentence, citing multiple incidents of sexual abuse to justify the departure.  Id. at 586.  The Minnesota Supreme Court held that the district court's reliance on this ground for departure was improper because the additional incident of sexual abuse only supports the defendant's guilt of a separate, uncharged offense.  Id. at 588-89.  Because a defendant may not be sentenced for a crime other than the crime of conviction, a district court may rely only on the egregious conduct associated with that offense.  Id.

            Here, the district court's decision to impose an upward departure was based on the egregious conduct that Jackson employed to commit first-degree aggravated robbery with a dangerous weapon, the offense of conviction.  The district court relied on the jury's findings of the following aggravating factors: that Jackson committed the first-degree aggravated robbery in G.W.'s home and that G.W. sustained multiple blows to the head and an orbital fracture during the commission of this offense.  That these facts also would support a conviction of burglary and assault does not preclude them from use as aggravating factors or as evidence that Jackson committed the first-degree aggravated robbery with a dangerous weapon in a particularly egregious manner.  Thus, this argument is unavailing.

B.

            Jackson maintains that his sentence is disproportionate because it exceeds the presumptive sentence that the district court could have imposed had he been convicted of burglary and assault.  Jackson maintains that, rather than using aggravating factors that the offense occurred in G.W.'s home and G.W. was injured during the offense, the state "should" have charged Jackson with assault.  Jackson argues that the sentence imposed encourages prosecutors to manipulate "the charging and sentencing processes . . . to achieve exaggerated upward durational departures" by using the elements of available, but uncharged, offenses as aggravating factors.  Such a practice, Jackson maintains, leads to disproportionate, irrational sentences that exaggerate the criminality of the conduct. 

            A prosecutor has broad discretion to decide what charges to bring against a defendant.  Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668, (1978); State v. Herme, 298 N.W.2d 454, 455 (Minn. 1980).  Such decisions are not subject to judicial review absent proof by the defendant of deliberate discrimination.  Herme, 298 N.W.2d at 455.  Because Jackson does not argue or present evidence that the charges against him were the result of deliberate discrimination, and because the record lacks any such evidence, Jackson's attempt to impose on the court a duty to supplant the prosecutor's charging function fails.

Jackson's sentence of 210 months' imprisonment is twice the maximum presumptive sentence for an offense of first-degree aggravated robbery by an offender with a criminal-history score of four.  Minn. Sent. Guidelines IV.  As such, it does not exceed the upper limit of durational departures based on aggravating circumstances.  State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988).  Moreover, the upward departure is based on factors that Minnesota appellate courts have recognized as appropriate for this purpose.  See, e.g., State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (observing that robbery occurring in victim's home, which is zone of privacy, "is an aggravating factor that can be considered in deciding whether to depart"); State v. Watts, 413 N.W.2d 192, 194 (Minn. App. 1987) (citing severity and permanency of victim's injuries as aggravating factors). 

Because the district court relied on conduct underlying Jackson's conviction when it imposed a sentence that is an upward durational departure from the presumptive guidelines sentence, and because its reasons for the departure are proper, the district court did not abuse its sentencing discretion.

Affirmed.

[1] Section 609.254, subdivision 1, makes it unlawful to possess a dangerous weapon, or an article used in a manner to lead the victim to believe it to be a dangerous weapon, or to inflict bodily harm on another during the commission of a robbery.

[2] The complaint alleged that G.W. suffered a heart attack as a result of the robbery.