State v. Clinkscales, 950002

• Decision Date: 29 August 1995
• Docket Number: No. 950002,950002
• Citation: 536 N.W.2d 661
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Sean CLINKSCALES, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 661

536 N.W.2d 661

STATE of North Dakota, Plaintiff and Appellee, v. Sean CLINKSCALES, Defendant and Appellant.

Crim. No. 950002.

Supreme Court of North Dakota.

Aug. 29, 1995.

Douglas Mattson, State's Atty., Minot, for plaintiff and appellee.

Richard B. Thomas of Thomas Law Firm, Minot, for defendant and appellant.

LEVINE, Justice.

Sean Christopher Clinkscales appeals from a conviction of Class B felony robbery for which he was sentenced to the North Dakota State Penitentiary for a period of ten years, the first four to be served without parole, under NDCC Sec. 12.1-32-02.1, the mandatory minimum sentencing statute for armed offenders. We hold the trial court did not err in refusing to give a lesser included offense jury instruction or in refusing to allow disclosure of the mandatory minimum sentence in closing argument. We affirm.

In the early morning hours of August 22, 1994, Clinkscales, wearing dark clothing and a ski mask, and armed with a BB gun resembling a 9mm semiautomatic pistol, robbed the Minot Superpumper convenience store located on North Broadway. Clinkscales entered the Superpumper convenience store around 5:00 a.m. and stooped in front of the counter until he was approached by the on-duty clerk, Ray Blount, who saw Clinkscales' reflection in the store window. When Blount approached, Clinkscales abruptly stood up, holding what appeared to be a 9mm pistol, and ordered Blount to turn around. Clinkscales went behind the counter, where Blount was standing, and told Blount to open the cash register and put the money in a bag. Throughout the encounter, Clinkscales kept the gun pressed against Blount's back. After Blount placed the cash in a bag, Clinkscales instructed him to open the safe and put the money from the safe into a second bag. Clinkscales continued to press the gun into Blount's back while he filled the second bag with cash and food stamps. Clinkscales instructed Blount to put the second bag inside the first bag and hand it to him. Then, Clinkscales told Blount to put his hands up and walk outside. Clinkscales followed Blount, still pressing the gun against his back. The two men walked about five to six feet from the store entrance and then, Clinkscales instructed Blount to turn around and go back into the store. Clinkscales fled on foot around the corner of the store. Once inside the store, Blount dialed 911 to report the robbery.

Clinkscales was convicted of Class B felony robbery and fleeing, or attempting to elude a police officer. He appeals only the robbery conviction, arguing the trial court erred by refusing to instruct the jury on Class C felony robbery, a lesser included offense of Class B felony robbery, and by prohibiting Clinkscales' counsel from arguing to the jury the mandatory minimum sentence Clinkscales would receive if the jury found that Clinkscales used a dangerous weapon in committing the robbery.

Clinkscales was charged with Class B felony robbery, which had three essential elements the State was required to prove:

"1) That on or about the 22nd day of August, 1994, in Minot, Ward County, North Dakota, the Defendant, Sean Christopher Clinkscales, was engaged in committing a theft;

2) That in the course of committing the theft the Defendant willfully possessed a firearm, or other dangerous weapon; and

3) That while doing so the Defendant willfully threatened or menaced another with serious bodily injury."

There is no constitutional right to a jury instruction on a lesser included offense in every case. State v. Piper, 261 N.W.2d 650, 653 (N.D.1977); see Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). In order to warrant a lesser included offense instruction, a defendant must meet the two-part test discussed in Piper, 261 N.W.2d at 654. The defendant must first establish that the requested instruction sets out an offense which is a lesser included offense of the charged offense, and second, that there is evidence which creates a reasonable doubt as to the greater offense and supports a conviction of the lesser included offense beyond a reasonable doubt. Id.; State v. Sheldon, 301 N.W.2d 604, 609 (N.D.1980); see also State v. Tweed, 491 N.W.2d 412, 414 (N.D.1992).

Section 12.1-01-04(15), NDCC, defines an "included offense" as an offense

"a. Which is established by proof of the same or less than all the facts required to establish commission of the offense charged;

b. Which consists of criminal facilitation of or an attempt or solicitation to commit the offense charged; or

c. Which differed from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission."

The State does not dispute that Class C felony robbery is a lesser included offense of Class B felony robbery. The elements of Class C felony robbery are (1) while committing a theft, (2) the defendant willfully attempts to inflict bodily injury upon another or threatens or menaces another with imminent bodily injury. NDCC Sec. 12.1-22-01(1). The elements of Class B felony robbery, with which Clinkscales was charged, are (1) while committing a theft, (2) the defendant willfully possesses a firearm, or other dangerous weapon, ¹ and (3) the defendant willfully threatens or menaces another with serious bodily harm. ² NDCC Sec. 12.1-22-01(2).

Under either subsection (a) or (c) of NDCC Sec. 12.1-01-04(15), the Class C felony robbery appears to fit squarely within the definition of an included offense. The elements of Class C felony robbery are essentially a subset of the elements of Class B felony robbery. Piper, 261 N.W.2d at 654. In order to prove Class B felony robbery, the jury must find the existence of Class C felony robbery, i.e., a theft and an attempt or threat of imminent bodily injury, as well as the existence of an additional factual element, the willful possession of a dangerous weapon. See NDCC Sec. 12.1-01-04(15)(a); Sheldon, 301 N.W.2d at 611.

Although Class C felony robbery is a lesser included offense of Class B felony robbery, Clinkscales still has to point to evidence creating a reasonable doubt as to the greater offense and supporting a conviction of the lesser offense. Tweed, 491 N.W.2d at 414. The purpose behind this second requirement for a lesser included offense instruction, is to avoid a jury conviction on the lesser offense based on sympathy for the defendant or an attempt to reach a compromise even though the evidence does not support such a conviction. Piper, 261 N.W.2d at 654. Jury instructions should be limited to those crimes a reasonable view of the evidence will sustain. Id.

The disparate element between Class B and Class C felony robbery is the possession of a dangerous weapon. ³ In order for Clinkscales to prevail, the evidence must create a reasonable doubt that he willfully possessed a dangerous weapon when he robbed the Minot Superpumper. The jury was instructed on the definition of "dangerous weapon":

"2) 'Dangerous weapon' means but is not limited to, any weapon which will expel, or is readily capable of expelling a projectile by the action of a spring, compressed air, or compressed gas, including any weapon, loaded or unloaded, commonly referred to as a BB gun, or CO2 gun; or, a weapon, the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury."

Clinkscales admits he possessed a BB gun resembling a 9mm pistol; however, he argues that the State did not prove the BB gun was "readily capable of expelling a projectile." To support his contention, he points to the trial testimony of the investigating police officers that they did not test the BB gun to see if it was capable of firing.

Clinkscales' argument is unconvincing. The jury was instructed that a dangerous weapon was either "any weapon which will expel, or is readily capable of expelling a projectile by the action of a spring, compressed air, or compressed gas" or "a weapon, the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury." To support its contention that Clinkscales possessed a dangerous weapon, the State introduced testimony showing the BB gun closely resembled a 9mm semiautomatic pistol, and that Blount, the Superpumper employee robbed by Clinkscales, believed Clinkscales had a 9mm pistol. Blount testified that he feared for his life when Clinkscales had the gun pressed into his back. Blount did not know the gun was unloaded, or whether it was capable of expulsion; however, he obviously believed that it was. See State v. Meier, 447 N.W.2d 506 (N.D.1989). A person who uses an unloaded or toy weapon during a robbery is subject to an aggravated penalty because of the "heightened fear" the presence of a weapon creates in the victim. II Working Papers of the Nat'l Comm'n on Reform of Federal Criminal Laws 908 (1970). While the State did not establish directly that the BB gun was capable of firing, Clinkscales introduced no evidence or testimony showing...