Opinion
No. A03-992.
Filed July 20, 2004.
Appeal from the District Court, Olmsted County, File No. K0-02-4337.
Mike Hatch, Attorney General, and Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Harten, Judge; and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant challenges his conviction of robbery, arguing that the evidence at trial was insufficient to support the conviction and that the district court interfered with his constitutional right to represent himself. He further challenges his sentence. Because the evidence was sufficient to find appellant guilty of robbery and because the court did not interfere with appellant's decision to represent himself, we affirm his conviction. Because the district court erred in resentencing appellant, we modify the sentence to the shorter period initially imposed by the district court.
FACTS
On November 1, 2002, an altercation arose at the Gas Light Inn in Rochester. The victim, Robert Crum, had spent the day there drinking, using drugs, and playing videogames with several individuals. In the evening, Crum left the motel to make some purchases at a local Wal-Mart. While out, he received a call on his cell phone from one of the individuals at the motel, requesting that he return to the room. When Crum walked into the room, Andrew Harris and appellant Kel Rhonn Chatous Barnes attacked him and demanded the money they claimed Crum owed them.
After several minutes of being attacked, Crum was able to escape and ran to a nearby pizza restaurant, where he collapsed from exhaustion. Appellant and Harris followed him inside and continued to attack him. When two of the restaurant's employees called the police, appellant and Harris ran back to the motel, picked up appellant's girlfriend, Kahlia Mitchner, and attempted to drive off. Police stopped the car, arrested all three individuals, and discovered $490 in Harris's pockets in $5, $10, $20, and $100 bills.
When police found Crum, he was shirtless on the floor of the restaurant. He informed the police that appellant and Harris had torn off his shirt, and stolen $70 and various personal items. He also told the police that appellant and Harris had threatened to shoot him in the back as he was running to the restaurant. When police brought Crum back to the motel room, they found his personal items but did not find the cash.
Later in the evening, police interviewed Crum a second time. He again stated that appellant and Harris stole $70, but admitted he did not know the denominations of the bills. On January 9, 2003, while incarcerated in the same jail as appellant, Crum signed an affidavit stating that appellant and Harris never threatened to use a gun and did not take $70 from his pocket and that he only made those initial allegations because the police advised him to do so. Crum further stated that he did not have any money on his person that night.
At appellant's trial for robbery, after the state had called eight of its nine witnesses, appellant informed the district court that he wished to fire his attorney because he was not asking the right questions. The district court gave appellant the option of representing himself or having his attorney continue. Appellant asked whether he would be allowed to recall the state's witnesses, to which the district court answered, "No." The district court then appointed appellant's attorney to act as standby counsel and inquired as to whether appellant's request was voluntary and intelligent. After the district court informed appellant of the possible sentences he faced if convicted, appellant met with his attorney and withdrew his request to act as his own attorney. The trial continued with appellant represented by his attorney.
Appellant was convicted of first-degree aggravated robbery, attempted first-degree aggravated robbery, simple robbery, and attempted simple robbery, but acquitted of second-degree aggravated robbery. At sentencing on May 19, 2003, the district court concluded that appellant met the definition of a dangerous offender under Minn. Stat. § 609.1095, subd. 2(2)(i) (2002), which allows durational departures upon such a finding, but denied the state's motion for an upward departure based on that statute. Instead, the district court sentenced appellant to 111 months, the presumptive sentence for appellant's crime and criminal-history score, stating that the "entire period shall be served pursuant to the statute."
The following day, the district court resentenced appellant, noting that it "failed to state the appropriate sentence intended by the specific findings that [it] did make relative to [the] statutory provision." The record indicates that the district court intended to sentence appellant under a different subdivision of the statute, which called for a "hard minimum," having no reduction for supervised release. When the district court discovered that it had sentenced appellant under a subdivision allowing early release, the court resentenced appellant to an upward durational departure of 166 months under the same subdivision to ensure that appellant would serve 110 and 2/3 months in prison.
DECISION I.
The first issue is whether the evidence presented at trial was sufficient to convict appellant of robbery. When the sufficiency of evidence is challenged, this court's 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 fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court will not disturb the verdict if the fact-finder, 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. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant argues that the evidence was insufficient because Mitchner's testimony that both men told her they stole from Crum was the only evidence to support his conviction, and as an accomplice, her testimony was insufficiently corroborated. An accused may not be convicted on the uncorroborated testimony of an accomplice. Minn. Stat. § 634.04 (2002). Corroborating evidence need not establish a prima facie case of the defendant's guilt. State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980). But it must point to the defendant's guilt to some substantial degree. Id. It may be direct or circumstantial and must link or connect the defendant to the crime. Id. It can be found from the defendant's opportunity and motive to commit the crime and his proximity to the place where the crime was located. Id." The quantum of corroborative evidence needed necessarily depends on the circumstances of each case." Id.
"An accomplice is one who has been or could be convicted of the same offense with which [the] defendant has been charged." State v. Shoop, 429 N.W.2d 259, 262 (Minn.App. 1988). Because Mitchner was charged with the same offenses as appellant and the charges were to be refiled if she did not fulfill her agreement with the state, Mitchner was an accomplice in appellant's case. But the record before us reflects that the state offered sufficient evidence and testimony to prove that appellant stole the $70.
First, Mitchner's testimony supports appellant's conviction, and the district court found her testimony credible, despite the fact that she testified in exchange for a plea bargain. See State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998) ("[The fact-finder] determines the weight and credibility of individual witnesses."). Mitchner testified that she heard appellant and Harris state that Crum owed them money before the attack, saw Harris checking Crum's pockets, and heard the two of them demanding their money from Crum during their attack. She also testified that both men told her that they got $70 from Crum.
Appellant argues that the only corroboration of Mitchner's testimony is "some of Crum's four stories." But while Crum offered different accounts, his first statements to the police are similar to Mitchner's. In these, Crum told the police that appellant and Harris stole his money. His later statements contradicting his earlier statements were taken only after he spent time in the same jail as appellant. The district court found that the first two statements, given immediately after the attack, were more credible. See id.
Appellant is correct when he argues that no other witness testified to actually seeing the robbery. The witnesses did state, however, that they heard appellant and Harris both discussing that Crum owed them money and demanding the money from Crum during the attack. Further, a witness testified that he coordinated the meeting among Crum, appellant, and Harris because Crum owed them money. Corroborating evidence "need not establish a prima facie case of the defendant's guilt." State v. Johnson, 616 N.W.2d 720, 727 (Minn. 2000). Here, the witnesses' testimony describes appellant's motive, intent, and proximity to the crime. See Adams, 295 N.W.2d at 533. When viewing the evidence in the light most favorable to the state, and assuming that the fact-finder believed the state's witnesses, we find there was sufficient evidence for the fact-finder to make legitimate inferences to conclude that the state met its burden of proof beyond a reasonable doubt.
II.
The next issue we face is whether the district court interfered with appellant's constitutional right of self-representation. A defendant has a federal constitutional right to represent himself in a state criminal proceeding. State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990). "[T]he self-representation right embodies such bedrock concepts of individualism and personal autonomy that its deprivation is not amenable to harmless error analysis." Id.
Appellant argues that the district court's refusal to allow him to recall the state's witnesses prevented him from representing himself. But the record does not factually support his argument. After the district court informed appellant that he could not recall the witnesses, appellant continued to request self-representation. It was only after the district court recited the possible sentences appellant could receive if he were convicted that appellant withdrew his request.
Further, the district court has discretion in deciding whether to permit a party to recall a witness. State v. Collins, 276 Minn. 459, 473, 150 N.W.2d 850, 860 (1967). Appellant relies on State v. Sandberg, 406 N.W.2d 506 (Minn. 1987), however, for the proposition that a refusal to permit a defendant to call a witness listed by the state, and not the defendant, is an abuse of discretion. Id. at 509. In Sandberg, the state did not actually call the witnesses the pro se defendant wished to present, and the defendant did not have the opportunity to cross-examine them. The court stated it was "unable to characterize the error as harmless." Id. at 508-09.
In this case, however, all of the witnesses whom appellant wished to recall had already testified, allowing the defense to elicit their testimony. Further, Sandberg suggests that a court's refusal to permit a pro se defendant to call a witness is subject to the harmless-error test. Id. Here, appellant was not prevented from eliciting testimony from any defendant, and the district court found that appellant's attorney asked appropriate and competent questions. Thus, the district court did not abuse its discretion.
III.
Next, appellant argues, and the state agrees, that the district court erred in resentencing appellant and that his sentence should be reduced to the originally imposed term of 111 months. Sentences may be modified in certain situations. Minn. R. Crim. P. 27.03, subd. 8 and 9, provides that the court at any time may correct clerical mistakes arising from an oversight or omission or sentences not authorized by law. Further, "[t]he court may at any time modify a sentence during either a stay of imposition or stay of execution of sentence except that the court may not increase the period of confinement." Minn. R. Crim. P. 27.03, subd. 9. Sentences authorized by law, however, cannot be increased. State v. Montjoy, 354 N.W.2d 567, 568 (Minn.App. 1984). To be unauthorized, a sentence must be contrary to statutory requirements. State v. Borrego, 661 N.W.2d 663, 666 (Minn.App. 2003).
A clerical mistake arising from oversight or omission "ordinarily is apparent upon the face of the record and capable of being corrected by reference to the record only. It is usually a mistake in the clerical work of transcribing the particular record . . . [and] . . . cannot reasonably be attributed to the exercise of judicial consideration or discretion." State v. Walsh, 456 N.W.2d 442, 443 (Minn.App. 1990). The record shows that the state "accurately reflected on the record that subdivision 3 did not apply to [appellant], but the recommendation by Court Services [indicated] that [appellant] be sentenced under subdivision 3 to a sentence as a dangerous career offender." The court's mistake appears to be based on its own misreading of the statutes and not simply a mistake in the clerical work of transcribing the particular record. See Minn. R. Crim. P. 27.03, subd. 8. Therefore, the error was not a clerical mistake.
Further, both parties agree that the original sentence was lawful under the sentencing statutes. "The Constitution prohibits resentencing to a term which is within the original authority of the sentencing court but greater than the term properly chosen when sentencing first occurred." Montjoy, 354 N.W.2d at 568 (reversing an increase in sentencing based on a sentencing worksheet error). See also State v. Walsh, 456 N.W.2d 442 (Minn.App. 1990); State v. Rock, 380 N.W.2d 211 (Minn.App. 1986), review denied (Minn. Mar. 27, 1986). Therefore, we modify appellant's sentence to the originally imposed term of 111 months, recognizing that appellant may be eligible for early-release programs.
Because we conclude that the presumptive sentence applies rather than an upward departure, we do not address the applicability of the recent U.S. Supreme Court decision concluding that findings which increase a defendant's sentence above the presumptive term must be made by a jury rather than the court. Blakely v. Washington, ___ U.S. ___, ___ S.Ct. ___ (June 24, 2004).
IV.
The final issue is whether appellant raises any meritorious claims in his pro se supplemental brief and reply brief. He claims that he was denied a fair trial because of prosecutorial misconduct and because the burden of proof was unfairly shifted to him. But he does not cite specific examples and offers no legal analysis. See Schoepke v. Alexander Smith Sons Carpet Co., 290 Minn. 518, 519, 187 N.W.2d 133, 135 (1971) (declining to address allegations unsupported by legal analysis or citation to authority). He further offers additional claims of insufficient evidence, but as discussed above, the record contains sufficient evidence to support his conviction.
In his reply brief, appellant questions the legality of the court appointing his privately retained counsel as standby counsel. Pursuant to Minn. R. App. P. 128.02, subd. 3, limiting reply briefs to new matter raised in the respondent's brief, we do not address this issue because this was the first time the specific argument was raised.
In sum, we conclude that with respect to appellant's pro se challenges, the district court did not err.