State v. Brown
| Decision Date | 13 July 1999 |
| Docket Number | No. C5-98-1423.,C5-98-1423. |
| Citation | 597 N.W.2d 299 |
| Parties | STATE of Minnesota, Respondent, v. William Henry BROWN, Appellant. |
| Court | Minnesota Court of Appeals |
Mike Hatch, Attorney General, St. Paul; and Amy J. Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, for respondent.
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, Minneapolis, for appellant.
Considered and decided by SHORT, Presiding Judge, PETERSON, Judge, and SHUMAKER, Judge.
On appeal from convictions and sentences for first-degree aggravated robbery and second-degree assault, William Henry Brown argues that (1) the evidence was not sufficient to support the conviction for aggravated robbery; (2) if the aggravated robbery conviction is affirmed, the second-degree assault conviction must be vacated as a lesser-included offense of the aggravated robbery; (3) because the aggravated robbery and the assault were parts of a single behavioral incident, the court should not have imposed a sentence for the assault; and (4) the court had no authority to order him to submit to an HIV test. In a pro se brief, Brown argues that he was denied effective assistance of counsel and was entitled to appointment of substitute counsel. The state moved to strike documents included in Brown's pro se brief. We affirm in part, vacate the sentence for second-degree assault, and grant in part the motion to strike.
William Henry Brown entered a convenience store and told the clerk, Judy Matusovic, that he wanted to buy two cases of Similac infant formula. When Matusovic set the cases of Similac on the counter, Brown grabbed them and ran outside. Thomas Majerus, an owner of the store, ran after Brown and caught up with him five to ten seconds later after Brown threw the Similac into his car and stopped to open his car door. Majerus grabbed Brown and was pulled into the car as Brown entered it. Brown ended up lying across both front seats with his head on the passenger seat. Majerus was lying on Brown, holding him. Brown started the car, jammed it into gear, and pushed the gas pedal with his hand. As the car moved away, Matusovic saw Majerus's feet dragging from the open car door.
Looking over the dashboard, Majerus saw that the car was approaching a barricade on a freeway overpass. Majerus turned the steering wheel, and the car stopped on the curb of the sidewalk along the overpass, about one and a half blocks from the store. Brown picked up a hammer from the floor of the car and swung it at Majerus. Majerus deflected most of the blow with his arm but was struck on the forehead. Brown also bit Majerus several times.
Christopher Bunn, who was at a bus stop near the store, saw Brown run out of the store with Majerus chasing him. When Brown started the car, Bunn reached through the driver's window to try to remove the keys from the ignition. But when the car moved forward, Bunn pulled his arm away and ran after the car. When the car stopped, Bunn pulled the keys from the ignition. Bunn saw Brown trying to hit Majerus with the hammer and took the hammer away from Brown. While Bunn helped hold Brown until the police arrived, Brown hit Bunn in the nose with his fist.
Brown was charged with one count of first-degree aggravated robbery in violation of Minn.Stat. § 609.245, subd. 1 (1996); one count of second-degree assault in violation of Minn.Stat. § 609.222, subd. 1 (1996); and one count of fifth-degree assault in violation of Minn.Stat. § 609.224, subd. 1 (1996).
The court appointed a public defender to represent Brown. At a pretrial hearing, Brown requested appointment of another attorney. The court refused to appoint another attorney but continued the trial to give Brown time to hire private counsel. A few weeks later, Brown again requested that the court appoint substitute counsel, and the court again refused. At a later hearing to clarify the status of Brown's representation, Brown acknowledged that he wanted to retain his original appointed counsel, who then represented Brown at trial.
The jury found Brown guilty of first-degree aggravated robbery and second-degree assault and not guilty of fifth-degree assault. The trial court sentenced him to concurrent prison terms of 68 months for the first-degree aggravated robbery offense and 39 months for the second-degree assault offense. The court also ordered Brown to submit to an HIV test because Brown had broken Majerus's skin when he bit him.
1. Is the evidence sufficient to support the conviction for first-degree aggravated robbery?
2. Is second-degree assault a lesser-included offense of first-degree aggravated robbery?
3. Were the second-degree assault and the first-degree aggravated robbery parts of a single behavioral incident?
4. Did the trial court have authority to order Brown to submit to an HIV test?
1. Sufficiency of the evidence. When reviewing a claim that the evidence is insufficient to support a conviction, this court reviews the record to determine whether the evidence, viewed most favorably to support a finding of guilt, was sufficient to permit the jury to reach the conclusion that it did. State v. Martin, 293 N.W.2d 54, 55 (Minn.1980). We "must assume that the jury believed the state's witnesses and disbelieved any contradictory evidence." State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978).
Brown argues that because the Similac formula was already in his car when Majerus caught up with him, the evidence is insufficient to prove that he used force to take or carry away the formula. He contends that he used force merely to effectuate his escape. We disagree.
Simple robbery is defined as follows:
Whoever, having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person's resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.
Minn.Stat. § 609.24 (1996) (emphasis added). First-degree aggravated robbery is defined as follows:
Whoever, while committing a robbery, is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or inflicts bodily harm upon another, is guilty of aggravated robbery in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both.
Minn.Stat. § 609.245, subd. 1 (1996) (emphasis added).
In State v. Kvale, 302 N.W.2d 650, 651-52 (Minn. 1981), the defendant argued that even though he took the victim's money and cut the victim's throat, there was no robbery because he did not use force to facilitate the taking. The defendant contended that because the evidence demonstrated that he cut the victim's throat after he had already taken the money, there was only a taking that did not amount to a robbery, followed by an unrelated assault. Id. at 652. The supreme court acknowledged "that the use of force in escaping only was insufficient to constitute robbery because it is clear from the statute that one must do more than merely use force to escape with stolen property to commit robbery." Id. at 652-53. But the court affirmed the aggravated robbery conviction because the threat of force preceded the taking and the force used to inflict bodily harm "overcame the victim's power to resist and compelled his acquiescence both in the completed taking and in the contemporaneous carrying away of the money." Id. at 653.
The court explained:
Brown struck Majerus with the hammer and bit him after Majerus pursued Brown to stop him from carrying away the Similac. Because Brown was attempting to drive away with the Similac in his car, the jury could reasonably conclude that his use of force accompanied the carrying away of the Similac and was intended to overcome Majerus's resistance to the carrying away. The evidence is sufficient to sustain the conviction for first-degree aggravated robbery.
2. Conviction for second degree assault. Brown contends that his conviction for second-degree assault must be vacated because second-degree assault is a lesser-included offense of first-degree aggravated robbery. We disagree.
Minn.Stat. § 609.04, subd. 1 (1996). In determining whether an offense is a necessarily included offense, a reviewing court looks at the elements of the offense rather than at the facts of the particular case. State v. Roden, 384 N.W.2d 456, 457 (Minn.1986). If it is impossible to commit the greater offense without also committing the lesser offense, the lesser offense is necessarily included in the greater offense. Id.
Second-degree assault is defined as follows:
Whoever assaults another with a dangerous weapon may be sentenced to imprisonment for not more than seven years or to payment of a fine of not more than $14,000, or both.
Minn.Stat. § 609.222, subd. 1 (1996) (emphasis added). As we have already stated, first-degree...
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