Opinion
No. C5-99-41.
Filed September 21, 1999.
Appeal from the District Court, Sherburne County, File No. K598775.
Mike Hatch, Attorney General, (for respondent)
Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Chad Oldfather, Assistant Public Defender, (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Crippen, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
A jury convicted Jerome Jefferson of attempted second-degree murder, attempted first-degree assault, second-degree assault (two counts), and felon in possession of a firearm. Jefferson challenges the sufficiency of the evidence to support four of the five convictions and alleges a due process violation in the jury instructions. In a supplemental pro se brief, Jefferson raises issues of juror misconduct and sentencing error. Because the evidence supports the convictions and we find no violations of due process or other reversible error, we affirm. But we vacate the attempted first-degree assault conviction as a lesser offense included in second-degree murder and remand the issue relating to Jefferson's criminal history score.
FACTS
Jerome Jefferson's five convictions stem from a shooting confrontation in an alley behind Bonita Robinson's house in St. Cloud. Dana Cobbins, Leonard Sims, Ronald Menzie, and Jerome Jefferson were at Robinson's house along with other visitors. Menzie and Jefferson arrived together in a car borrowed from Crystal Sticha. Following a disagreement in the basement of the house, Jefferson started up the basement stairs, and when he met Sims coming down the stairs, he pointed a gun at him. Cobbins and Sims left immediately through the back door; Jefferson and Menzie went out the front door. Witnesses then heard gunshots in the alley.
Cobbins testified that when the shots were fired, he was in the driver's seat of his parked car in the alley behind Robinson's house. Sims testified that he was also in the alley. Two other witnesses, who testified that they were in a parked car outside the house, heard shots fired and saw Jefferson and Menzie run to their car. A neighbor described seeing two unidentified males running toward a car following the gunshots. Another neighbor heard the shots, saw a man running across his yard, and, moments later, saw two black males sitting inside a car matching the description of the car Jefferson was driving. When the neighbor approached the car, he saw that the driver had a handgun on his lap.
Two of the shots hit Cobbins' car. Other bullets struck a garage, a shed, a tree, and a fence. Police recovered nine shell casings fired by a nine-millimeter weapon and nine fired by a .45-caliber weapon. A witness turned in a .45-caliber semi-automatic weapon that was later identified as belonging to Menzie. Police recovered a nine-millimeter weapon from Sticha's garage. Ballistic tests showed that marks on the shell casings found behind Robinson's house matched the marks on shell casings fired from the gun recovered from the garage. Jefferson had a key to Sticha's garage, which was locked at the time police recovered the gun.
Jefferson relied on an alibi defense. He testified that he was not present when the shooting took place. He said he loaned Sticha's car keys to Menzie and went to the home of Lashonda Washington. Washington testified that Jefferson was at her home at the time of the shooting. Washington's brother testified that he called her during that time period and she mentioned to him that Jefferson was with her.
The jury convicted Jefferson on all five charges, and Jefferson appeals. We address, in order, his claims of (1) insufficient evidence; (2) constitutionally defective jury instructions; (3) invalidity of the attempted first-degree assault charge; (4) juror misconduct; and (5) improper sentencing.
ANALYSIS I
Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably conclude the defendant committed the crime charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). In evaluating the evidence, we 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). Circumstantial evidence is entitled to as much weight as other evidence. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). To sustain a conviction based entirely on circumstantial evidence, however, the evidence as a whole must exclude beyond a reasonable doubt any rational hypothesis other than guilt. State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).
Second-degree murder is defined as "caus[ing] the death of a human being with intent to effect the death of that person or another, but without premeditation." Minn. Stat. § 609.19, subd. 1(1) (1998). An attempt occurs when a person, "with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime." Minn. Stat. § 609.17, subd. 1 (1996).
Significant evidence demonstrates that Jefferson intended to kill Cobbins or Sims or both. See State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998) (a person is presumed to intend the natural and probable consequences of his actions); accord Minn. Stat. 609.02, subd. 9(4) (1998). Cobbins testified that he was in his car when he saw the muzzle flashes of two guns, heard shots fired, and heard a bullet ricochet off his car. Sims testified that Jefferson pointed a gun at him inside the house, and the evidence shows Jefferson was present in the part of the alley where shots were fired. Witnesses testified that Jefferson was in the alley at the time the shots were fired and also testified that they had seen Jefferson carrying a gun. Police found nine-millimeter shell casings in the alley. Jefferson was driving Sticha's car, and police later found in Sticha's garage a nine-millimeter handgun linked to the casings found in the alley. Jefferson had a key to Sticha's garage. Witnesses testified that Jefferson had become angry over a relationship involving Sims, and Sims and Cobbins had driven in the same car. The evidence is sufficient to support the conviction for attempted second-degree murder.
It is not clear whether the trial court entered judgments of conviction on the two counts of second-degree assault. The evidence that supports Jefferson's conviction for attempted second-degree murder, however, would also support convictions for those offenses. Additionally, witnesses' testimony that Jefferson pointed a gun at Sims' chest inside the residence would, by itself, suffice to sustain a conviction for second-degree assault against Sims. See, e.g., State v. Bobo, 414 N.W.2d 490, 494 (Minn.App. 1987) (affirming sentence for conviction for second-degree assault arising out of convenience-store robbery in which defendant was present in getaway car when store was robbed), review denied (Minn. Dec. 22, 1987).
II
Jefferson was convicted of one count of attempted murder against "Leonard Sims or Dana Cobbins or both." Jefferson contends the jury instruction violated his due process right to a unanimous jury verdict because it failed to require the jury to agree on the identity of the intended victim. Although Jefferson waived the right to contest the jury instructions on appeal by failing to object at trial or to raise the issue in a motion for new trial, State v. LaForge, 347 N.W.2d 247, 251 (Minn. 1984), we address the claim in the interests of justice because it alleges fundamental error in jury instructions. State v. Begbie, 415 N.W.2d 103, 105 (Minn.App. 1987) (addressing similar claim despite waiver), review denied (Minn. Jan. 20, 1988).
Verdicts in criminal cases must be unanimous. Minn.R.Crim.P. 26.01, subd. 1(5). The jury instructions in this case did not require the jury to unanimously agree which victim Jefferson intended to murder. Nevertheless, because the evidence is sufficient to support the conclusion that Jefferson intended to kill both victims, the instruction does not deprive Jefferson of his right to a unanimous verdict. See Begbie, 415 N.W.2d at 105-06.
In Begbie, the defendant was charged and convicted of one count of terroristic threats. Id. at 104. The defendant telephoned a woman and threatened to kill her and her husband. Id. The jury instructions did not require the jury to agree which victim, the woman or her husband, had been terrorized. Id. at 105. But because the evidence was sufficient to support a conviction of terroristic threats against each victim independently, the court held it "sufficient that all jurors unanimously agreed on their ultimate conclusion that [the defendant] was guilty of the crime charged, even though they may not have agreed upon exactly which victim [the defendant] had intended to terrorize." Id. at 106. Accord State v. Day, 501 N.W.2d 649, 653 (Minn.App. 1993) (given relatively undisputed facts, no violation of right to unanimous verdict when instruction permitted jury to convict without specifying which alternate theory of guilt it applied); State v. Hart, 477 N.W.2d 732 (Minn.App. 1991) (same), review denied (Minn. Jan. 16, 1992). Similarly, the evidence produced at Jefferson's trial is sufficient to support attempted second-degree murder convictions against either Sims or Cobbins, or both. Thus, the instruction did not deprive Jefferson of his due process right to a unanimous jury verdict.
This result is also supported by the supreme court's decision in State v. Hough. 585 N.W.2d 393 (Minn. 1998). In Hough, the court upheld a conviction of six counts of second-degree assault when the defendant, intending to frighten only one individual, fired seven shots into the individual's home, then occupied by six people. See id. at 394. The court relied on the axiom that a person intends the logical consequences of his actions and held that "the assailant's knowledge of the presence of a particular victim is not essential to sustain a conviction" when the assailant knows or should have known that multiple victims were present. Id. at 396. As in Hough, Jefferson knew or reasonably should have known that Cobbins and Sims were in the alley because he encountered Sims on the stairs inside the residence and exited the house immediately after Sims and Cobbins. The jury's verdict indicates it believed Jefferson fired nine rounds from a nine-millimeter weapon into the alley in the direction of Sims and Cobbins. It is reasonable to presume, based on that action, that Jefferson intended to kill either or both Sims and Cobbins. The state was not required to prove the precise number or identity of Jefferson's intended victims. The jury instructions did not violate Jefferson's due process rights.
III
Jefferson argues he should not have been convicted of attempted first-degree assault because Minnesota law does not recognize such a crime. We agree that the attempted first-degree assault conviction should be vacated, but on different grounds. A person may not be convicted of both a crime charged and a lesser crime, which is "necessarily proved if the crime charged [is] proved." Minn. Stat. § 609.04(4) (1996). As charged in this case, both attempted second-degree murder and attempted first-degree assault applied to either victim, and neither offense required any degree of actual bodily harm. Therefore, a conviction of attempted second-degree murder necessarily encompasses a conviction for attempted first-degree assault. Cf. State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997) (first-degree assault is not a lesser-included offense of attempted murder because it requires great bodily harm). Unlike the attempted first-degree assault offense, second-degree assault is not a lesser-included offense of attempted murder. State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983) (addressing attempted first-degree murder).
IV
In his pro se supplemental brief, Jefferson contends an instance of juror misconduct deprived him of a fair trial. We disagree. The district court acted promptly on a report that a witness had spoken with one of the jurors. The district court conducted a hearing in which both attorneys were given an opportunity to participate. Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960) (once the court becomes aware of the possibility of juror misconduct, it may conduct a hearing in order to determine the existence of misconduct and whether it was prejudicial). Jefferson makes only speculative allegations that the incident prejudiced his case before the jury, and these arguments are unsupported by the record. Jefferson was not deprived of a fair trial because of a brief and peripheral conversation between a witness and a juror.
Jefferson's pro se supplemental brief also argues that the district court improperly counted a prior Wisconsin conviction as a felony in the computation of Jefferson's criminal history score. This argument was raised in a post-trial motion, but neither the guidelines sentencing worksheet nor presentence investigation report were transmitted to this court. The record is inadequate to address the issue, which we remand to the district court for determination if determination is required.