Opinion
No. A06-1328.
Filed October 23, 2007.
Appeal from the District Court, Hennepin County, File No. 05081303.
Lori Swanson, Attorney General, Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, (for appellant).
Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant challenges his conviction of first-degree aggravated robbery, arguing that the evidence was not sufficient to support his conviction. Because the district court properly applied the law and did not abuse its discretion, we affirm.
FACTS
In December 2005, Minneapolis police responded to a report of an assault and shoplifting incident at a Rainbow Foods store. The report identified appellant Mark Anthony Hamilton as a possible suspect. Police apprehended appellant and found a kitchen knife in his pocket. Police interviewed Zavier Awoudi and his supervisor Michael Davenport, both of Rainbow's loss-prevention department. Awoudi alleged that appellant had attempted to steal merchandise from the store and, when confronted, bit Awoudi on the hand and threatened him with a knife. When police interviewed appellant he complained of a loose tooth and ear pain and, therefore, was transported to a hospital for treatment. Subsequently, appellant was charged with first- and second-degree aggravated robbery, second-degree assault, theft, and terroristic threats.
At trial, the state presented testimony from Awoudi, Davenport, and two Minneapolis police officers who were involved in the investigation. Awoudi and Davenport testified that they observed appellant remove two bags of frozen shrimp from the store without paying for them. Awoudi then confronted appellant as he was leaving the store by asking if there was "anything you might of forg[otten] to purchase?" Appellant tried to run away, but Awoudi grabbed his coat, saying, "just drop the bag[s] of shrimp and you can go." Awoudi testified that appellant responded by biting his hand. When Awoudi extricated his hand, appellant threatened him with a knife and stated he was going to "f-ck him up." Davenport and another employee broke up the scuffle, and then Davenport called the police. Awoudi subsequently was treated at the hospital for the bite on his hand.
The jury found appellant guilty of all charges. The district court sentenced appellant to 98 months for first-degree aggravated robbery. This appeal follows.
DECISION I.
Appellant first argues that his alleged conduct does not meet the elements of first-degree aggravated robbery as a matter of law under Minn. Stat. § 609.245, subd. 1 (2004). We review questions of law de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). We interpret the words of a statute according to their plain and ordinary meaning. Minn. Stat. § 645.08(1) (2006); State v. Bluhm, 676 N.W.2d 649, 651 (Minn. 2004).
First-degree aggravated robbery requires that the defendant "while committing a robbery, is armed with a dangerous weapon . . . or inflicts bodily harm upon another." Minn. Stat. § 609.245, subd. 1; State v. Kvale, 302 N.W.2d 650, 653 (Minn. 1981) ("the statute requires only that, while committing a robbery, the defendant either be armed with a dangerous weapon or inflict bodily harm"). A defendant is guilty of simple robbery if he knowingly takes the property of another and uses force to "overcome the person's resistance . . . to . . . [the] carrying away of the property." Minn. Stat. § 609.24 (2004).
Appellant argues that he did not use force in the "carrying away" of the property. Specifically, appellant contends that the crime of theft was completed when he exited the building and his subsequent interaction with Awoudi cannot be used to elevate theft to aggravated robbery. In support of this argument, appellant relies heavily on State v. Kvale. We disagree.
In Kvale, the Minnesota Supreme Court held that a defendant could be convicted of aggravated robbery when he used threats before taking the property of another and later inflicted bodily harm to overcome "the victim's power to resist" the carrying away of the property. 302 N.W.2d at 653. In so doing, the court rejected the argument that the defendant was guilty only of theft and an "unrelated assault." Id. at 652-53. The court stated that the robbery statute "does not require that the use of force . . . actually precede or accompany the taking." Id. at 653. Rather, "[i]t requires only that the use of force . . . accompany either the taking or the carrying away and that the force . . . be used to overcome the victim's resistance or compel his acquiescence in the . . . carrying away." Id. (emphasis added).
Here, as in Kvale, there is no temporal break in the appellant's conduct in carrying away the property and using force to overcome the victim's resistance. Both occurred almost simultaneously as he exited the building. Recent decisions of this court support our conclusion that the use of force required by the statute may occur simultaneously with the "carrying away" of the property of another. See State v. Brown, 597 N.W.2d 299, 302-04 (Minn.App. 1999) (affirming a conviction of aggravated robbery where the defendant, having stolen baby formula from the victim's convenience store, was chased outside by the victim and hit the victim on the head with a hammer while attempting to drive away), review denied (Minn. Sept. 14, 1999); State v. Burrell, 506 N.W.2d 34, 35-36 (Minn.App. 1993) (affirming a conviction of aggravated robbery where the defendant, having stolen cigarettes from the victim's convenience store, was chased outside by the victim and bit her before entering his car and driving away), review denied (Minn. Oct. 19, 1993). Thus, we reject appellant's argument that his conduct does not meet the elements of first-degree aggravated robbery as a matter of law.
II.
Appellant contends that the evidence presented to the jury was insufficient to support his conviction. In considering a claim of insufficient evidence, 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 jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court 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 the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
In order to secure a conviction of first-degree aggravated robbery, the state must present evidence that the defendant (1) knowingly took the property of another; (2) used force or the threat of force to overcome the victim's resistance to the taking or carrying away of the property; and (3) was armed with a dangerous weapon or inflicted bodily harm on the victim. 10 Minnesota Practice, CRIMJIG 14.04 (2006); Minn. Stat. §§ 609.24, .245, subd. 1; see also Kvale, 302 N.W.2d at 653 (approving the CRIMJIG instructions on aggravated robbery).
Regarding the first element, appellant does not dispute that he knowingly stole the shrimp from Rainbow Foods. But he argues that the evidence is insufficient to establish the second element — that he used force or the threat of force to overcome Awoudi's resistance to the carrying away of the shrimp. We disagree.
Awoudi testified that when he confronted appellant outside the store, appellant bit him on the hand, causing it to bleed and require stitches, and that appellant threatened him with a knife. Davenport testified that he observed appellant holding the knife while telling Awoudi he was going to "f-ck him up." Based on this evidence, the jury could reasonably conclude that appellant used force or the threat of force to overcome Awoudi's resistance to the carrying away of the shrimp.
Appellant also argues that the evidence is insufficient to establish the third element — that he was either armed with a dangerous weapon or inflicted bodily harm on the victim while committing the crime. We disagree.
A dangerous weapon is "any device . . . capable of producing death or great bodily harm." Minn. Stat. § 609.02, subd. 6 (2004). Bodily harm is defined, among other things, as "physical pain or injury." Minn. Stat. § 609.02, subd. 7 (2004). Both Awoudi and Davenport testified that appellant threatened Awoudi with a kitchen knife that was received into evidence at trial. Awoudi testified that when he attempted to restrain appellant and regain the stolen merchandise, appellant bit him, causing pain and requiring stitches. Davenport observed that Awoudi's hand was bleeding. Based on this evidence the jury could reasonably conclude that appellant was either armed with a dangerous weapon or inflicted bodily harm on Awoudi.
On this record, the evidence viewed in the light most favorable to the conviction supports the jury's guilty verdict.
III.
Appellant raises several additional contentions in his pro se supplemental brief. These contentions include: (1) attacks on the credibility of the prosecution witnesses, (2) issues not presented at trial, and (3) a claim of ineffective assistance of counsel. All three contentions are without merit.
"[J]udging the credibility of the witnesses is the exclusive function of the jury." Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). Additionally, appellate courts "generally will not decide issues which were not raised before the district court." Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Accordingly, appellant's first two contentions are not properly before this court.
Regarding the claim of ineffective assistance of counsel at trial, appellant attributes two mistakes to his attorney: (1) her failure to subpoena an employee of the laundromat who witnessed appellant shortly after his interaction with Awoudi, and (2) her failure to introduce photographs of his tooth and ear injuries taken at a hospital following his arrest. This evidence, he argues, could have countered the prosecution theories. Appellant relies on Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) in support of his claim.
To receive a new trial on ineffective-assistance-of-counsel grounds "[t]he defendant must affirmatively prove that his counsel's representation `fell below an objective standard of reasonableness' and `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068). Matters of trial tactics, including the calling of witnesses and the presentation of information to the jury, "represent an attorney's decision regarding trial tactics which lie within the proper discretion of trial counsel and will not be reviewed later for competence." State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Appellant's criticisms of the trial tactics employed by his counsel are not proper grounds for an ineffective-assistance-of-counsel claim.