Opinion
No. C0-02-900
Filed February 25, 2003.
Appeal from Hennepin County District Court, File No. J60162444
Leonardo Castro, Fourth District Chief Public Defender, Peter W. Gorman, Assistant Public Defender, (for appellant)
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, (for respondent)
Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Halbrooks, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 argues that the trial court erroneously found that he committed the offense of aiding an offender and abused its discretion in classifying appellant's unranked offense. Because the evidence is sufficient to permit the trial court to find appellant guilty beyond a reasonable doubt of aiding an offender and because the court properly addressed the Kenard factors in assigning a severity level to the unranked offense, we affirm.
FACTS
In the early afternoon of August 2, 2001, 14-year-old appellant C.H. was standing with a group of his friends by a parked car on the 1600 block of Irving Avenue in Minneapolis. Some of the group were wearing red, the color of the O.M.B. gang. Y.V. and three others, who were members of P.B., a rival gang, rode their bicycles past appellant's group. Words were exchanged between the two groups, and three members of the O.M.B. gang tried to grab two P.B. members. When the P.B. gang members attempted to ride off, appellant and his friends began chasing them on foot. Appellant knew that one of his friends, K.N.X., had a handgun. Y.V. lost control of his bicycle when an O.M.B. member grabbed him. More words were exchanged and Y.V. was observed reaching for a gun in his waistband. At that point, K.N.X. pulled out his gun and shot Y.V. in the forehead, killing him. Appellant and the other O.M.B. members took off.
Later that afternoon, K.N.X. gave appellant the handgun, asking him to "hold onto it." Appellant wrapped a white hand towel around the handgun and placed it in his front pocket. Between 5:00-6:15 p.m., the police went to a known O.M.B. hangout, where they arrested K.N.X. and completed a pat-down search of all present, including appellant. The search produced the handgun from appellant's front pocket. Later testing established that the bullet retrieved from Y.V. was fired from the gun in appellant's possession at the time of his arrest.
Appellant challenges the adjudication of delinquency under Extended Jurisdiction Juvenile (EJJ) for aiding an offender under Minn. Stat. § 609.495, subd. 3 (Supp. 2001). The adjudication resulted from a stipulated fact trial on his involvement in concealing a murder weapon. The trial court assigned a severity level of VIII under the Minnesota Sentencing Guidelines to the unranked offense of aiding an offender, based on the four non-exclusive factors established in State v. Kenard, 606 N.W.2d 440, 443 (Minn. 2000). As a result, appellant received a stayed sentence of 83 months and was committed to a treatment program in Pennsylvania. This appeal follows.
DECISION I.
Appellant contends that the crime of aiding an offender under Minn. Stat. § 609.495, subd. 3 (Supp. 2001), with a predicate offense of second-degree murder, was not proved by the stipulated facts. The trial court's application of statutory criteria to facts as found is a question of law subject to de novo review. State v. Bunde, 556 N.W.2d 917, 918 (Minn.App. 1996). But in considering a claim of insufficient evidence, appellate 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, was sufficient to allow the fact-finder to have reached its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
Appellant does not argue that the trial court's factual findings are in error because the facts were determined from the stipulation agreed on by the parties and presented to the court.
Intentional aiding of an offender can take the form of concealing evidence of a crime that the person knew about or had reason to know about. The statute states:
Whoever intentionally aids another person whom the actor knows or has reason to know has committed a criminal act, by destroying or concealing evidence of that crime, * * * is an accomplice after the fact and may be sentenced to not more than one-half of the statutory maximum sentence * * * .
Minn. Stat. § 609.495, subd. 3.
Appellant argues that, as a threshold matter, he lacked knowledge of the murder because the evidence of self-defense in the stipulated facts was not sufficiently rebutted by other evidence. A defendant has the initial burden of establishing that a murder was done in self-defense. State v. Dodis, 314 N.W.2d 233, 237 (Minn. 1982). Here, appellant never raised the issue.
Nor did K.N.X, who pleaded guilty to second-degree felony (unintentional) murder.
Appellant argues that, like the defendant in In re Welfare of A.C.N., 583 N.W.2d 303 (Minn.App. 1998), he lacked actual knowledge that K.N.X. killed Y.V. and cannot, therefore, be adjudicated delinquent. We disagree. In A.C.N., this court concluded that the defendant could not be convicted of aiding an offender with the predicate offense of murder because he lacked knowledge that the person he aided had committed murder. Id. at 306. Although A.C.N. knew that a drive-by shooting had occurred, he lacked actual knowledge of murder because he never saw the victim get shot, due to the victim's vehicle's tinted windows and the defendant's inability to see from his position in the back seat. Id. A.C.N. only saw that the driver of his car shot a gun at a car with tinted windows and then immediately accelerated and sped off. Id.
This case is distinguishable from A.C.N. for two reasons. First, since the decision in A.C.N., the Minnesota legislature amended the language in the "aiding" statute from "[w]hoever intentionally aids another person known by the actor to have committed a criminal act," Minn. Stat. § 609.495, subd. 3 (1996), to "[w]hoever intentionally aids another person whom the actor knows or has reason to know has committed a criminal act," Minn. Stat. § 609.495, subd. 3 (Supp. 2001), rendering actual knowledge unnecessary. Second, the trial court had sufficient evidence in the stipulated fact record to determine that appellant had reason to know that a murder had been committed. The trial court relied on evidence that "[appellant] witnessed K.N.X. pull out a handgun, and shoot the victim in the forehead." He also "witnessed the victim fall to the ground * * * ." This evidence is sufficient to support a finding that appellant had reason to know that K.N.X. had committed the crime of murder.
Appellant also argues that the evidence was insufficient to prove the second element of the "aiding" statute because the fact stipulation did not prove concealment of the gun. Appellant contends that the evidence only established that appellant held the gun for a short time. First, however, the statute does not include time of possession as an element of the crime. Second, the trial court made the finding that
K.N.X. gave [appellant] a handgun and instructed him to "hold onto it." When he took the gun, [appellant] knew that the gun was the one used to shoot the victim and, he took the gun for the purpose of hiding it.
Appellant does not dispute the trial court findings, but argues, citing to the American Heritage Dictionary 304 (2d College ed. 1985), that the definition of "concealed" is "taking action to prevent something from being discovered." The term "concealing" has not been construed within the context of this statute. But even if we accept appellant's definition of the term, it appears that appellant knew that the gun was evidence of the crime and prevented it from being discovered (as opposed to leaving it at the scene, or refusing to take it from his friend). The evidence was sufficient beyond a reasonable doubt to have allowed the trial court to find appellant criminally responsible for aiding K.N.X. in the predicate offense of second-degree murder.
Respondent's argument is persuasive that in a related context, the crime of receiving and concealing stolen property
does not necessarily refer to a hiding or secreting, but can include any act or conduct which * * * may prevent or render more difficult discovery by the owner.
State v. Carter, 293 Minn. 102, 104, 196 N.W.2d 607, 609 (1972) (quotation and citations omitted).
II.
Appellant also argues that the trial court erred in classifying "aiding an offender" in the predicate offense of second-degree murder as a severity-level VIII offense. The trial court must assign an appropriate severity level when an individual is convicted of offenses excluded from the Offense Severity Reference Table, and this court reviews that decision for an abuse of discretion. Minn. Sent. Guidelines cmt. II.A.05; see also State v. Kenard, 606 N.W.2d 440, 442-43 (Minn. 2000) (applying an abuse-of-discretion standard to the sentencing court's assignment of a severity level to an unranked offense). In assigning a severity level to appellant's offense, the court considered the factors established by the supreme court in Kenard, 606 N.W.2d at 443, and suggested by Minn. Sent. Guidelines cmt. II.A.05. Those factors are: (1) the gravity of the specific conduct; (2) the severity level assigned to any ranked offense whose elements are similar to those in the unranked offense; (3) the conduct of and severity level assigned to others for the same offense; and (4) the severity level assigned to others who engaged in similar conduct. Kenard, 606 N.W.2d at 443. Appellant contends that the trial court erred in applying the Kenard factors because the fact stipulation does not directly support the court's findings.
In considering the first factor, the gravity of the specific conduct, the court determined that appellant's conduct exhibited a "high level of gravity" because appellant (1) chased Y.V. with the intent to cause bodily harm; (2) was present when Y.V. was shot; and (3) accepted the gun from K.N.X. for the purpose of hiding it. In making its findings, the trial court drew reasonable inferences from the stipulated facts, given the context of a verbal exchange between members of two rival gangs and a subsequent chase when appellant knew that K.N.X. had a handgun. See State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995) (noting that the court may draw inferences from facts in the record).
The trial court next examined the second Kenard factor, the classification of offenses with similar elements to the unranked offense. The court adopted the reasoning in Kenard, concluding that Minn. Stat. § 609.495, subd. 1(a) (Supp. 2001), is the ranked offense most similar to Minn. Stat. § 609.495, subd. 3. Kenard, 606 N.W.2d at 443-44. Appellant agreed with the comparison of these two statutes, but noted that subdivision 1(a) is classified in Category I of the guidelines, while the trial court classified subdivision 3 as a Category VIII. But in reaching its conclusion, the supreme court properly noted that, although these two statutes are the most similar, the legislature intended for convictions under Minn. Stat. § 609.495, subd. 1(a), to deal with considerably less serious underlying crimes. Id. at 444.
The trial court combined the third and fourth factors, the conduct of and severity level assigned to others for the same offense or who engaged in similar conduct. In discussing these factors, the court again relied on Kenard, in which the supreme court carefully reviewed six cases involving convictions under Minn. Stat. § 609.495 subd. 3, that had received severity levels of VII or VIII. Kenard, 606 N.W.2d at 444-45. The supreme court extracted three elements that justify an increased severity level, including whether the offender (1) was present at the time of the underlying offense; (2) participated in some degree in the underlying offense; or (3) readily participated in covering up the underlying offense. Id. at 445. Here, the court concluded that each of the three factors was present because appellant (1) chased Y.V. with the intent to cause bodily harm; (2) was present at the shooting; and (3) accepted the gun from K.N.X. for the purpose of hiding it.
Appellant criticizes the trial court for relying on the same fact findings to support more than one of the Kenard factors. This argument is unsupported by any authority. Moreover, appellant's "specific conduct" that necessitated findings for factor one were again required in the other factors.
Appellant reasserts his argument that the findings are clear error because the evidence does not support them and that the findings are insufficient to support the Kenard factors that justify increased severity levels. We disagree, because reasonable inferences are permitted. Appellant's presence at the scene of the underlying crime was not disputed. Appellant "participated in some degree in the underlying offense" by chasing Y.V. even if appellant was not the one to pull the victim off his bike or to shoot him. And appellant readily participated in covering up the underlying offense by accepting the handgun from K.N.X. We, therefore, conclude that the trial court did not make clearly erroneous findings or abuse its discretion in its determination of the proper severity level.
Finally, appellant contends that the trial court's findings were legally deficient because appellant's mere presence at the crime scene does not make him an accomplice under the law. See State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981) (holding that evidence of passive approval is insufficient to show beyond a reasonable doubt that appellant was guilty of active conduct sufficient to convict her of first-degree murder under Minn. Stat. § 609.05, subd. 1 (1980)). But appellant was charged with aiding an offender, not with aiding in the commission of the crime. Here, the finding regarding "presence" is appropriately being used to satisfy a factor that Minnesota courts have determined justifies a higher severity level. See Kenard, 606 N.W.2d at 445 (using the defendant's presence to justify a higher severity level). We conclude that the trial court properly addressed the Kenard factors by drawing reasonable inferences from the stipulated facts and did not abuse its discretion by assigning a severity level of VIII to the crime of aiding an offender with the predicate offense of second-degree murder.