Opinion
No. C6-82-895.
July 15, 1983.
Appeal from the District Court, Hennepin County, Richard J. Kantorowicz, J.
C. Paul Jones, Public Defender, and Robert D. Goodell, Asst. Public Defender, U of M, Minneapolis, for appellant.
Hubert H. Humphrey III, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief, Appellate Section, Rick Osborne, Michael Richardson and Beverly J. Wolfe, Asst. County Attys., Minneapolis, for respondent.
Considered and decided by the court en banc without oral argument.
Defendant was found guilty by a district court jury of a charge of aggravated robbery, Minn.Stat. § 609.245 (1982), and was sentenced by the trial court to an executed prison term of 54 months pursuant to Minn.Stat. § 609.11 (1982) and Minnesota Sentencing Guidelines and Commentary, II.E. (1982). On this appeal from judgment of conviction defendant argues that (1) his conviction should be reversed outright because the state failed to prove intent or (2) he should be given a new trial because the prosecutor committed prejudicial misconduct in his closing argument. There is no merit to either contention. The state's evidence established that defendant actively participated in the robbery as the gunman. The prosecutor did make an objectionable statement early in his closing argument but the trial court sustained an objection and cautioned the prosecutor. We are satisfied — as was the trial court, which denied a post-trial motion for a new trial on this ground — that the prosecutor's comment did not affect the verdict.
Defendant's criminal history score was zero. If he had not been subject to the minimum term requirement of section 609.11, defendant's presumptive sentence under the Guidelines would have been an executed term of 24 (23-25) months in prison.
Affirmed.