Opinion
No. C9-00-2172.
Filed October 9, 2001.
Appeal from the District Court, Hennepin County, File No. 00031852.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, (for appellant)
Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Lindberg, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges his sentence, arguing that his aggregate commitment should be 75 months rather than the 96 months indicated by the warrant of commitment prepared by the court administrator's office. Appellant next challenges the district court's denial of additional oral statements on his behalf by other people following vindication of his own right to allocution. Appellant also challenges the district court's award of restitution for damage done by police during their search for him. Finally, appellant raises several additional issues in his pro se supplemental brief. We reverse and remand.
FACTS
On March 31, 2000, appellant was at the Minneapolis Community College selling compact discs featuring himself as the artist. At some point, Christopher Martin made derogatory comments to appellant about the compact discs and an argument ensued.
Martin attempted to walk away, but appellant followed him outside the cafeteria and cut off his path of retreat. Appellant pulled out a gun and threatened Martin. Appellant also pulled up his shirt to reveal that he was wearing a bulletproof vest and said, "I'm always vested." During this confrontation, appellant cocked the handgun, which was pointed at Martin.
Hank Farrah, a security officer at the college, approached the scene and attempted to use his walkie talkie to contact police. Appellant observed Farrah doing this and threatened him with his gun. As appellant pointed the gun at Farrah, he chambered a round and moved toward him in a threatening manner. Appellant then put the gun down to his side and walked away.
Appellant was arrested the same day and later charged with two counts of assault in the second degree in violation of Minn. Stat. § 609.222, subd. 1 (1998), and one count of commission of a crime while wearing or possessing a bullet resistant vest in violation of Minn. Stat. § 609.486 (1998). The complaint was subsequently amended to include one additional count of felon in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (1998).
On July 19, 2000, appellant waived his right to a jury trial and a court trial commenced. Appellant was convicted of all counts.
Appellant was sentenced on September 21, 2000, to a term of imprisonment of a year and a day for commission of a crime while wearing a bullet resistant vest, which was stayed, a term of imprisonment of 60 months for the crime of unlawful possession of a firearm, a concurrentterm of 39 months for the crime of second degree assault, and a consecutive term of 36 months for the second count of second degree assault. Appellant was further ordered to pay restitution to the Minneapolis Community College for damage done to the facility during the police's search for him. This appeal follows.
DECISION I.
Appellant asserts that the district court intended to sentence the two counts of second degree assault consecutively, resulting in a 75 month prison term, but that the court administrator erroneously issued a warrant of commitment indicating that the charges of second degree assault and felon in possession of a handgun were sentenced consecutively, resulting in a 96 month commitment. The 96 month commitment would be an upward sentencing departure.
Careful review of the record reveals that the sentence pronounced by the district court can be interpreted to indicate either a 75 month or a 96 month commitment. We, therefore, remand to the district court for clarification of the sentence imposed.
If the district court intended a 96 month commitment, the court must support its decision to depart upward. An upward departure from sentencing guidelines must be supported by substantial and compelling circumstances which make the crime more serious than a typical case involving the same crime. State v. Allen, 482 N.W.2d 228, 231 (Minn.App. 1992), review denied (Minn. Apr. 13, 1992); Minn. Sent. Guidelines II.D.
II.
At sentencing, after appellant had exercised his right of allocution, defense counsel requested that the court hear statements from individuals who wished to speak on appellant's behalf. This request was denied because the court felt that such statements amounted to a rebuttal of the victim impact statements and the community impact statements.
Appellant argues that the district court erred when it explained that its denial of defense counsel's request was a policy that the court followed. The district court went on to state, however, that it had in its possession a "strong letter" from appellant's motherwhich was being considered but that additional presentations would not be allowed. As both parties correctly state, Minn.R.Crim.P. 27.03, subd. 3, gives the district court discretion whether to allow "other persons" to make oral statements "on behalf of the defendant." Here, appellant's right of allocution was vindicated and we find no abuse of discretion on the part of the district court.
III.
After appellant left the scene of the confrontation with Martin and Farrah, the police arrived at the college and were apparently told by Farrah that appellant had fled into the Fine Arts Building. The police sealed off the campus and conducted a search of its buildings. During the search, the police damaged many doors and locks.
Prior to sentencing, the college filed a request that appellant pay for the damage. At sentencing, the court granted this request and ordered that appellant pay restitution to the college. The court delegated the responsibility for determining restitution to the probation department and informed appellant that he had the right to a restitution hearing should he dispute the probation department's determination. Appellant now challenges this award of restitution as inappropriate because his actions did not directly cause the loss suffered by the college.
"The court has wide discretion in ordering restitution and determining the appropriate amount of restitution." State v. Anderson, 507 N.W.2d 245, 246 (Minn.App. 1993) (citations omitted), review denied (Minn. Dec. 22, 1993). The state must prove by a preponderance of the evidence the loss sustained by a victim as a result of the offense. Minn. Stat. § 611A.045, subd. 3 (1998); see State v. Fader, 358 N.W.2d 42, 48 (Minn. 1984) (there must be a factual basis showing the amount of economic loss sustained by a victim). Minn. Stat. § 611A.04, subd. l(a) (1998), requires a victim to submit restitution information "in affidavit form or by other competent evidence" that "describe[s] the items or elements of loss, itemize[s] the total dollar amounts of restitution claimed, and specif[ies] the reasons justifying these amounts * * *." There is no such documentary evidence in the record. There is no report from the probation department or other documentation as to damage figures. Appeal of the restitution issue is simply premature at this time. We remand for additional findings.
IV.
In his pro se brief, appellant raises several additional issues. Appellant challenges the sufficiency of the evidence and the credibility of the state's witnesses. An appellate court's reviewof a challenge to the sufficiency of evidence is limited to determining whether the evidence,viewed in the light most favorable to the conviction, supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Here, the record clearly supports appellant's convictions.
The credibility of the witnesses' testimony is for the fact finder to determine and the resolution of conflicting testimony is exclusively within its province. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). Any inconsistency in the evidence must be resolved in favor of the verdict. State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990). We assume that the fact finder believed the state's witnesses and disbelieved evidence that contradicted their testimony. State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980). "[A] conviction can rest upon the testimony of a single credible witness." State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (citation omitted). Here, the state's case consisted largely of eyewitness testimony that amply supports the conviction.
Appellant next challenges his conviction for being a felon in possession of a handgun in violation of Minn. Stat. § 624.713, subd. 1(b) (1998). This required that appellant be adjudicated delinquent for a crime of violence with less than ten years having elapsed. Id. The amended complaint indicates that appellant committed a controlled substance crime in the second degree — possession on May 10, 1995. The record contains a copy of the June 15, 1995, order that adjudicated appellant delinquent.
Minn. Stat. § 624.712, subd. 5 (1998), provides the definition of a "crime of violence," and it includes chapter 152 felony violations which, in turn, include controlled substance crimes. Thus, appellant meets the requirements for being a felon in possession of a handgun.
Appellant asserts the judge acted in a biased manner after listening to appellant's compact disc. But an appellate court "will not decide issues raised for the first time on appeal." State v. Spaeth, 552 N.W.2d 187, 196 97 (Minn. 1996) (citation omitted) (applying the principle to a pro se appellant's challenge to a trial court's decision to admit statements made by appellant into evidence).
Here, appellant never raised the issue of the judge's alleged bias at trial. Furthermore, appellant has not provided a factual basis for the assertion, nor did he request removal of the judge at trial. See Minn.R.Crim.P. 26.03, subd. 13(4) (providing method for defendant to remove judge). Once a defendant has submitted to a trial and other proceedings before a judge without raising the issue of bias, the judgment will be reversed only if the defendant is "able to show actual bias and not just the appearance of bias." State v. Moss, 269 N.W.2d 732, 735 (Minn. 1978). But appellant provides no support for his bias argument.
Appellant also argues he was not given a fair trial due to media bias. This claim, however, is "wholly devoid of any support in the record of the proceedings and afford[s] no basis for review at this time." State v. Plant, 280 Minn. 397, 399, 159 N.W.2d 404, 405 (1968); see also Schoepke v. Alexander Smith Sons Carpet Co., 290 Minn. 518, 519, 187 N.W.2d 133, 135 (1971) ("assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection") (citation omitted).
Finally, appellant challenges his sentencing as unreasonable, inappropriate, and excessive. Sentencing decisions rest within the broad discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). We find no such abuse of discretion.
After careful review, we find no merit in appellant's pro se claims.