State v. Krampotich
| Decision Date | 27 December 1968 |
| Docket Number | 41061,Nos. 41068,s. 41068 |
| Citation | 282 Minn. 182,163 N.W.2d 772 |
| Parties | STATE of Minnesota, Respondent, v. Michael R. KRAMPOTICH, Appellant. STATE of Minnesota, Respondent, v. Peter A. SHEVCHUK, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. The evidence sustains jury verdicts finding defendants guilty of the crimes of unauthorized use of a motor vehicle, simple robbery, simple assault as to one defendant, and aggravated assault as to the other defendant.
2. The trial court properly refused to instruct the jury on the lesser offense of simple assault. As to the defendant found guilty of aggravated assault, a finding that defendant in fact pointed a dangerous weapon at the head of his victim compelled a finding of aggravated assault.
3. The crimes of which defendants were adjudged guilty were not a single behavioral incident but a divisible series of incidents, without substantial unity of time, place, or motivation, so that the restraint against multiple punishment stated in Minn.St. 609.035 does not apply.
4. The trial court did not abuse its discretion in denying a motion for a change of venue on the ground of prejudicial pretrial newpaper publicity.
C. Paul Jones, Public Defender, Robert E. Oliphant, Asst. Public Defender, Minneapolis, for appellants.
Douglas M. Head, Atty. Gen., St. Paul, John C. Arko, County Atty., David Naughtin, Asst. County Atty., Hibbing, for respondent.
Heard before KNUTSON, C.J., and NELSON, MURPHY, PETERSON and FRANK T. GALLAGHER, JJ.
These companion appeals, arising out of companion criminal conduct, raise common issues. Defendants were each charged with kidnapping, aggravated assault, aggravated robbery, and the unauthorized use of a motor vehicle. They were separately tried. Defendant Peter A. Shevchuk was found guilty of simple assault, simple robbery, and unauthorized use of a motor vehicle. Defendant Michael R. Krampotich was found guilty of aggravated assault, simple robbery, and unauthorized use of a motor vehicle. Both were acquitted of kidnapping. Maximum sentences were imposed for each crime of which they were convicted, the sentences, with one exception, to be served concurrently. The issues on appeal are:
(1) Whether the evidence is sufficient to sustain the convictions of these crimes.
(2) Whether, as to defendant Krampotich, the trial court should have instructed the jury as to simple assault rather than aggravated assault only.
(3) Whether commission of the multiple crimes constituted a single behavioral incident and was thus subject to statutory restraint against multiple punishment.
(4) Whether the trial court abused its discretion in denying defendants' motions for change of venue because of prejudicial pretrial publicity.
1. The evidence so overwhelmingly supports each conviction that a detailed statement of the facts is not necessary. The criminal conduct occurred on the night of December 28, 1966, in the small town of Kelly Lake, 4 miles west of Hibbing, Minnesota. Defendants Krampotich and Shevchuk, together with one Albert Estey, came upon the automobile of the complaining witness, John Johnson, stopped on a deserted country road. Together they 1 assaulted Johnson, kicking him in the ribs and face with severely injurious force. A succession of threats and assaults continued over a period of some 2 1/2 hours. Following the final assault, a blow on the nose by defendant Shevchuk which caused Johnson's blood to stain a 2-foot circle in the snow, Johnson escaped into the woods as a bullet ricocheted past his head.
After the initial assault, Johnson obeyed the command to 'move over' in the seat, and the three assailants got into the car and drove off, one of them in the back seat and two of them flanking Johnson in the front seat. It is obvious that defendants' intentional taking and use of their victim's motor vehicle was unauthorized and hence a criminal act. 2
A considerable time later, after they had stopped to buy beer, one of the three said to Johnson, 'We want your wallet.' Johnson handed it over without resistance and they took $40 from it. They removed and retained a wristwatch and a .22-caliber pistol under like circumstances. 3 Minn.St. 609.24 defines simple robbery in these terms:
'Whoever, knowing he is not 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 his 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 $10,000, or both.' (Italics supplied.)
Defendants' argument that no threat was used at the time and that Johnson voluntarily handed over his personal property is without merit. Actual force and threat of force had preceded the taking. The jury could well find that any apparent acquiescence of Johnson in the taking was only because of the pervasive threat of force against him. Quite apart from Johnson's own testimony that it was so, the jury could reasonably infer that he was put in a continuing state of fear that overcame his resistance.
Subsequently, while all three assailants were still in the automobile, Shevchuk removed Johnson's pistol from the automobile's glove compartment. After Estey had fired several shots out the car window, Krampotich took the gun, which had been reloaded, cocked it, and pointed it at Johnson's head. Krampotich said, When Johnson raised his arm to push the gun away, Shevchuk struck him and said, 4 Shevchuk testified that he himself grabbed the barrel of the pistol at that point and told Krampotich to be careful; and defendants thereafter fired several more shots out the car window and into the automobile itself. Krampotich's act was unquestionably an assault with a dangerous weapon and, therefore, an aggravated assault as charged in the information, 5 irrespective of the jury's more favorable finding as to Shevchuk.
2. Defendant Krampotich asserts that the trial court should have instructed the jury on the lesser offense of simple assault as well as that of aggravated assault. The charge of aggravated assault, however, related only to defendant's assault with a loaded pistol. The trial court was careful to instruct the jury that the charge was so limited and that they were to disregard any other acts of assault. If the defendant did in fact, contrary to his denial, perpetrate that specific act, he was guilty of nothing less than aggravated assault; otherwise he was guilty of no assault whatever. As we held in State v. Tennyson, 212 Minn. 158, 166, 2 N.W.2d 833, 837, 139 A.L.R. 987, 993, it is proper to refuse a requested instruction to a lesser offense 'if the evidence is unequivocal so as to permit only a finding of guilty or not guilty of the crime charged.' See, also, State v. Norlander, 277 Minn. 436, 152 N.W.2d 774.
3. The most substantial issue raised on these appeals is whether the multiple punishments imposed by the trial court were authorized by statute. Minn.St. 609.035 provides:
(Italics supplied.)
The objective and scope of the statute in prohibiting multiple prosecutions 6 and punishment where 'a person's conduct constitutes more than one offense' has been extensively considered in several recent cases. In State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 525, we held that the statute applied only to the situation where each crime resulted from a single behavioral incident, tested as follows:
'* * * (A)part from the factors of time and place, the essential ingredient of any test is Whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.'
A factual test of such single criminal objective, as we implied in State v. Johnson, supra, and expressed in State v. Murphy, 277 Minn. 355, 152 N.W.2d 507, is whether all of the acts performed were necessary to or incidental to the commission of a single crime and motivated by an intent to commit that crime. In State v. Reiland, 274 Minn. 121, 125, 142 N.W.2d 635, 638, we related the statute to a basic policy 'to protect against exaggerating the criminality of a person's conduct by making both punishment and prosecution commensurate with culpability,' and observed that the rule must be refined under case-by-case application. 7
We conclude that the three crimes constituted a divisible series of incidents rather than a single behavioral incident. Although there was some unity of time in the sense that all the incidents occurred the same night, the incidents nevertheless occurred at clearly separate times during an extended period of some 2 1/2 hours. There was, to be...
To continue reading
Request your trial
-
State v. Bitz
...the reports, and all twelve stated that they had formed no opinion as to the guilt or innocence of the appellant. State v. Krampotich, 163 N.W.2d 772 (Minn. 1968); State v. McLennan, supra. Additionally it should be noted that the appellant did not challenge for cause any of the jurors fina......
- State v. Carlson
-
State v. Bakken, A14–2057.
...to or incidental to the commission of a single crime and motivated by an intent to commit that crime.” State v. Krampotich, 282 Minn. 182, 186–87, 163 N.W.2d 772, 776 (1968).Even assuming that Bakken possessed each of the pornographic works to satisfy his sexual urges, the mere fact that he......
- State v. Hogan