This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0843
State of Minnesota, Respondent,
vs.
Joseph Cody Morrison, Appellant.
Filed March 16, 2015 Affirmed in part, reversed in part, and remanded Larkin, Judge
Hennepin County District Court File No. 27-CR-13-22388
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and
Larkin, Judge. UNPUBLISHED OPINION
LARKIN, Judge
Appellant challenges his conviction of aiding and abetting first-degree aggravated
robbery, arguing that the evidence is insufficient to sustain his conviction. He also argues
that his warrant of commitment should be corrected to reflect that he was not adjudicated
guilty and sentenced on the offense of aiding and abetting third-degree assault. Because
the evidence is sufficient to sustain appellant’s aggravated-robbery conviction, and
because Minn. Stat. § 609.04 (2012) does not bar multiple convictions for aggravated
robbery and third-degree assault, we affirm appellant’s convictions. But we reverse
appellant’s sentence for the third-degree assault under Minn. Stat. § 609.035 (2012) and
remand to the district court with instructions to vacate that sentence.
FACTS
In June 2013, a group of four individuals attacked and robbed a man outside a
home in Minneapolis. The victim of the crime, J.T., identified appellant Joseph Cody
Morrison as one of the assailants. The state charged Morrison with aiding and abetting
first-degree aggravated robbery and aiding and abetting third-degree assault, and the case
was tried to a jury.
J.T. testified that around 3:30 a.m. on June 23, he arrived at the home of S.B., his
girlfriend. S.B.’s brother, H.O., was standing outside the front door, and four men were
behind him. J.T. asked if S.B. was home. The four men surrounded J.T. and began
hitting him. One struck J.T. “really hard,” and J.T. fell to the ground. The group
continued to hit and kick J.T. “all over [his] body.” J.T. testified that while two of the
2 men grabbed his arms, the other two grabbed his legs, removed his shorts, and stole his
money, credit card, and cell phone. J.T. passed out after being struck on his head.
When J.T. woke up, he ran and screamed for help. Someone called the police, and
an ambulance arrived and took J.T. to a hospital. His two front teeth were broken, his
lips were bloody, and his body was covered in bruises. He also sustained brain damage.
During an interview two weeks after the robbery, J.T. told Sergeant Jesse Garcia of the
Minneapolis Police Department that he could identify his attackers if he saw them again.
Sergeant Garcia showed J.T. several photo lineups, and J.T. picked Morrison from one
of the lineups.
At trial, J.T. identified Morrison as one of the men who attacked him. He stated
that Morrison “was on the right of the people who had surrounded [him]” and was one of
two taller men present. J.T. testified that he “feared for [his] life” at the time of the
robbery.
H.O. also testified. He stated that he was at his home on the morning of June 23.
S.B. lived there, but she was not home at the time. A group of four individuals, including
Morrison, were drinking outside of H.O.’s house. When J.T. arrived around 3:30 a.m.,
H.O. told him that S.B. was not home and went inside. When H.O. went back outside, he
saw Morrison and the three other men beating J.T., who at that point was clothed in only
his boxers. H.O. saw Morrison kick and punch J.T. H.O. told Sergeant Garcia that
Morrison participated in the robbery. H.O. also identified L.R. as one of the individuals
who attacked J.T. with Morrison.
3 L.R. testified that he participated in the robbery and that he pleaded guilty. He
stated that he was with Morrison, H.O., and two others at S.B.’s house on June 23. J.T.
arrived around 3:30 a.m. looking for S.B. L.R. went inside the house, and when he came
back outside, he saw J.T. on the ground. L.R. testified that he took J.T.’s wallet, removed
the money, threw the wallet on the ground, and ran away. L.R. testified that he did not
see Morrison attack J.T. or take any of his belongings.
Sergeant Garcia also testified. He stated that J.T. told him that he could identify
the men who robbed him. J.T. also told him that H.O. was present during the robbery.
Sergeant Garcia interviewed H.O., who told him that Morrison participated in the
robbery. During a subsequent interview at the police station, H.O. again told Sergeant
Garcia that he witnessed the robbery and that Morrison participated. Based on this
information, Sergeant Garcia assembled photographic lineups and showed them to J.T.
J.T. identified Morrison.
After the prosecution rested, Morrison testified on his own behalf. He stated that
he was at H.O.’s house on the morning of the crime and that he came outside and saw
someone “severely stomping” a man’s head “into the ground.” Morrison told the
assailant to “chill” and grabbed him around the waist, which gave the victim a chance to
run away. Morrison stated that he did not witness a robbery. He testified that he did not
see L.R. at the scene; he only saw H.O. and the person he stopped from assaulting the
victim.
The jury found Morrison guilty of aiding and abetting both first-degree aggravated
robbery and third-degree assault. On the warrant of commitment, the district court
4 indicated that Morrison was adjudicated guilty of both offenses and that his prison
sentence was 48 months. The document also included the following handwritten note:
“Sentence on [third-degree assault is] 15 months stayed[,] shall merge.”
Morrison appeals, arguing that the evidence is insufficient to sustain his conviction
of aiding and abetting first-degree aggravated robbery and that the warrant of
commitment is incorrect.
DECISION
I.
When considering a claim that the evidence is insufficient to support a conviction,
“this court thoroughly examines the record to determine whether the evidence, when
viewed in the light most favorable to the conviction, is sufficient to allow the jurors to
reach the verdict they did.” State v. Crockson, 854 N.W.2d 244, 247 (Minn. App. 2014),
review denied (Minn. Dec. 16, 2014). “We assume that the jury believed all of the state’s
witnesses and disbelieved any evidence to the contrary.” Id. (quotation omitted). “We
will not alter a verdict if the jury, acting with due regard for the presumption of
innocence and the requirement of proof beyond a reasonable doubt, could reasonably
conclude that the defendant was guilty of the charged offense.” Id. For determinations
of credibility and resolution of conflicting testimony, we defer to the jury. State v. Lloyd,
345 N.W.2d 240, 245 (Minn. 1984); State v. Watkins, 650 N.W.2d 738, 741 (Minn. App.
2002).
Morrison challenges his conviction of aiding and abetting first-degree aggravated
robbery. A person is guilty of robbery if he, with knowledge of his lack of permission,
5 “takes personal property from the person . . . of another and uses . . . force . . . to
overcome the person’s resistance or powers of resistance to, or to compel acquiescence
in, the taking or carrying away of the property.” Minn. Stat. § 609.24 (2012). A person
is guilty of first-degree aggravated robbery if he “inflicts bodily harm upon another”
while committing a robbery. Minn. Stat. § 609.245, subd. 1 (2012). “A person is
criminally liable for a crime committed by another if the person intentionally aids,
advises, hires, counsels, or conspires with or otherwise procures the other to commit the
crime.” Minn. Stat. § 609.05, subd. 1 (2012).
“To impose liability under the aiding and abetting statute, the state must show
some knowing role in the commission of the crime by a defendant who takes no steps to
thwart its completion.” State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (quotation
omitted). “Mere presence at the scene of a crime does not alone prove that a person aided
or abetted, because inaction, knowledge, or passive acquiescence does not rise to the
level of criminal culpability.” Id. “Nevertheless, active participation in the overt act
which constitutes the substantive offense is not required, and a person’s presence,
companionship, and conduct before and after an offense are relevant circumstances from
which a person’s criminal intent may be inferred.” Id.
Morrison contends that the state proved only that he “was present” and not that he
participated in or otherwise aided the robbery. The record belies his claim. J.T.
identified Morrison as one of the men who attacked him. He identified Morrison in a
photographic lineup before trial. He also identified Morrison in court at trial, testifying
that Morrison was in the group of men who attacked him, beat him, held him down, and
6 took his property without his consent. Although J.T. did not specifically describe
Morrison’s actions during the attack, he testified that all four men beat him and held him
while his pants were removed and his belongings were taken. Moreover, H.O. told
Sergeant Garcia that he saw Morrison participate in the robbery, and he testified during
trial that he saw Morrison kick and punch J.T.
Morrison argues that “even if [he] participated in the assault [of J.T.], those
actions did not aid and abet the robbery.” He contends that the evidence shows that he
was “merely present” for the robbery and not that he participated in or aided the robbery.
This is not a case of mere presence. Morrison played an active role in the crime; he did
not passively acquiesce. See State v. Crow, 730 N.W.2d 272, 280 (Minn. 2007) (“Mere
presence at the crime scene does not alone prove that a person aided or abetted, because
inaction, knowledge, or passive acquiescence do not rise to the level of criminal
culpability.”). The evidence shows that Morrison held down J.T.’s arm or leg with three
other men, while one of them took J.T.’s wallet and phone. Morrison’s participation in
the assault rendered J.T. helpless and enabled one or more of Morrison’s companions to
take J.T.’s belongings. This is sufficient evidence of aiding and abetting. See State v.
Parker, 282 Minn. 343, 355-57, 164 N.W.2d 633, 641-42 (1969) (upholding defendant’s
conviction for aggravated robbery where defendant “was present during the criminal
activity,” “did nothing to prevent the offenses committed or the brutal beating which the
victim endured,” and “must have known of the robbery and made no attempt to stop it”);
State v. Bellecourt, 277 Minn. 163, 152 N.W.2d 61 (1967) (upholding theft conviction
where defendant was part of three-man group that passed the victim a moment before the
7 victim was struck in face, rendered unconscious, and woke up to find his billfold
missing).
Morrison further argues that there was “no evidence that [he] knew that the
purpose of the assault was to rob the victim.” To prove that a defendant is guilty of
aiding and abetting, the prosecution must “prove beyond a reasonable doubt that (1) [the
defendant] knew his alleged accomplices were going to commit a crime, and that (2) he
intended his presence and actions to further the commission of that crime.” State v.
Milton, 821 N.W.2d 789, 805 (Minn. 2012). However, liability is expansive under the
aiding-and-abetting statute. See Minn. Stat. § 609.05, subd. 2 (2012) (“A person liable
under subdivision 1 is also liable for any other crime committed in pursuance of the
intended crime if reasonably foreseeable by the person as a probable consequence of
committing or attempting to commit the crime intended.”). The evidence shows that
Morrison continued to hold J.T. down while his companions disrobed J.T. and took J.T.’s
property without his consent. At that point, Morrison knew that his companions were
committing a robbery, and his continued participation proves his intent to further the
commission of that crime.
Lastly, Morrison argues that H.O.’s testimony was “suspect” and “questionable.”
Credibility determinations are within the purview of the jury, not this court. See Lloyd,
345 N.W.2d at 245. Morrison otherwise relies on his own testimony and the testimony of
L.R. to show that he did not participate in the robbery. The existence of conflicting
evidence does not warrant reversal because all inconsistencies in the evidence are
resolved in favor of the state when analyzing a challenge to the sufficiency of the
8 evidence. State v. Budreau, 641 N.W.2d 919, 929 (Minn. 2002). We view the evidence
in the light most favorable to the conviction and assume the jury disbelieved any
contradictory evidence. See Crockson, 854 N.W.2d at 247.
In sum, the evidence shows that Morrison and three other men assaulted J.T. and
held him down while one or more of Morrison’s companions took J.T.’s belongings
without his permission. Morrison does not dispute that J.T. sustained bodily harm during
the assault. The jury, acting with due regard for the presumption of innocence and the
requirement of proof beyond a reasonable doubt, could reasonably conclude that
Morrison was guilty of aiding and abetting first-degree aggravated robbery. Accordingly,
we do not disturb the verdict.
II.
Morrison contends that the warrant of commitment contains two “clerical errors”
that must be corrected. First, he argues that the warrant incorrectly indicates that he was
adjudicated guilty of aiding and abetting third-degree assault. Second, he argues that the
warrant incorrectly indicates that he received a stayed sentence for the third-degree
assault. Relying on the sentencing transcript, Morrison argues that the district court “did
not impose a stayed sentence and did not adjudicate [him] guilty of [third-degree
assault].” He asserts that the warrant of commitment “does not accurately reflect the
[district] court’s sentence” and asks this court to correct the warrant to reflect that he
“was not adjudicated guilty of [third-degree assault] and [a third-degree assault] sentence
was not stayed.”
At Morrison’s sentencing hearing, the district court judge stated the following:
9 Joseph Cody Morrison, having been found guilty by a jury of your peers of aiding and abetting first-degree aggravated robbery[,] . . . I hereby sentence you to the commissioner of corrections for a period of 48 months. . . .
With respect to [third-degree assault], the presumptive sentence is 15 months. That sentence will be merged with the sentence I just imposed.
....
All of this has been written out on a piece of paper. I’d like you to read it, sign it, and keep a copy for yourself.
The warrant of commitment, which was signed by the district court judge and
Morrison at the time of sentencing, states that Morrison was adjudicated guilty of aiding
and abetting both first-degree aggravated robbery and third-degree assault. The warrant
also states that Morrison was sentenced to “48 months,” and it includes a handwritten
note stating, “Sentence on [third-degree assault] 15 months stayed[,] shall merge.” For
the reasons that follow, we reject Morrison’s argument that the warrant of commitment
does not accurately reflect the district court’s sentence.
First, a sentence cannot “merge” unless there is a sentence. Thus, the district
court’s oral statement and notation in the warrant of commitment that the third-degree
assault sentence “will be merged” and “shall merge” show that the district court judge
imposed a sentence. Second, the imposition of a sentence presumes a conviction. See
Minn. Stat. § 609.10, subd. 1(a) (2012) (“Upon conviction of a felony and compliance
with the other provisions of this chapter the court, if it imposes sentence, may sentence
the defendant to the extent authorized by law . . . .” (Emphasis added.)). Thus, even
though the district court did not orally announce that it was adjudicating Morrison guilty
10 of aiding and abetting third-degree assault and entering a judgment of conviction on that
offense, the district court’s imposition of a sentence for that offense implies that the
district court did so. See id. Third, and most significantly, the district court judge’s oral
comment that “[a]ll of this has been written out on a piece of paper” for Morrison to sign
and its contemporaneous execution of the warrant of commitment stating that Morrison
was convicted and sentenced for aiding and abetting third-degree assault documents that
which is implicit in the district court’s oral statements: the district court entered a
judgment of conviction and imposed a stayed sentence on the third-degree-assault
offense.
The district court judge’s failure to precisely describe his actions on the record is
not fatal. This is merely a case of a judge using imprecise language to describe his order
for conviction and sentence. See State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999)
(recognizing that “testimony and statements recorded in hearing and trial transcripts are
often imprecise and unclear with respect to sentencing and conviction orders”). It is not a
case in which the district court’s oral sentence and its written sentencing order are
irreconcilable. See State v. Staloch, 643 N.W.2d 329, 329-30 (Minn. App. 2002) (noting
“the difference between” an oral sentence and a written sentencing order where the oral
sentence indicated that 75 days of jail time were “suspended” and the written sentencing
order indicated that the 75 days were “stayed” and holding that “[w]hen an orally
pronounced sentence varies from a written sentencing order, the orally pronounced
sentence controls”). In sum, the warrant of commitment accurately reflects the district
court’s sentence.
11 Nonetheless, Morrison’s request raises issues regarding whether the multiple
convictions and sentences are permissible. A person “may be convicted of either the
crime charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1. An
“included offense” means any of the following:
(1) A lesser degree of the same crime; or (2) An attempt to commit the crime charged; or (3) An attempt to commit a lesser degree of the same crime; or (4) A crime necessarily proved if the crime charged were proved; or (5) A petty misdemeanor necessarily proved if the misdemeanor charge were proved.
Id., subd. 1(1)-(5). Morrison was convicted of aiding and abetting both first-degree
aggravated robbery and third-degree assault. The only included-offense provision that
could apply here is subpart (4), a “crime necessarily proved if the crime charged were
proved.” Id., subd. 1(4).
“In determining whether an offense is a necessarily included offense [for purposes
of section 609.04, subd. 1(4)], a reviewing court looks at the elements of the offense
rather than at the facts of the particular case.” State v. Brown, 597 N.W.2d 299, 304
(Minn. App. 1999), review denied (Minn. Sept. 14, 1999). “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.
In this case, the greater offense, 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
12 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 . . . .
Minn. Stat. § 609.245, subd. 1 (emphasis added). The lesser offense, third-degree
assault, is defined as “assault[ing] another and inflict[ing] substantial bodily harm.”
Minn. Stat. § 609.223, subd. 1 (2012); see also Minn. Stat. § 609.02, subd. 7a (2012)
(defining “substantial bodily harm” as “bodily injury which involves a temporary but
substantial disfigurement, or which causes a temporary but substantial loss or impairment
of the function of any bodily member or organ, or which causes a fracture of any bodily
member”).
Based on the elements of these offenses, third-degree assault is not a necessarily
included offense of first-degree aggravated robbery. A person can commit first-degree
aggravated robbery without causing any harm by being “armed with a dangerous
weapon,” in which case a third-degree assault would not occur. This court previously
relied on similar reasoning to conclude that “it is possible to commit first-degree
aggravated robbery without also committing second-degree assault, and second-degree
assault is not a lesser-included offense of first-degree aggravated robbery.” Brown, 597
N.W.2d at 304; see Minn. Stat. § 609.222 (2012) (defining second-degree assault as
“assault[ing] another with a dangerous weapon”). Moreover, even though a person may
commit first-degree aggravated robbery by inflicting bodily harm upon another, there is
no requirement that the bodily harm be substantial, as is necessary for third-degree
assault. Because third-degree assault is not an included offense of first-degree
13 aggravated robbery under section 609.04, Morrison’s multiple convictions for aiding and
abetting first-degree aggravated robbery and third-degree assault are permissible.
However, whether the district court properly sentenced Morrison for both offenses
requires a separate analysis. See State v. Bookwalter, 541 N.W.2d 290, 293-94 (Minn.
1995) (distinguishing between prohibitions against multiple convictions and multiple
sentences). “[I]f a person’s conduct constitutes more than one offense under the laws of
this state, the person may be punished for only one of the offenses.” Minn. Stat.
§ 609.035, subd. 1. “The purpose of [section 609.035] is to limit punishment to a single
sentence where a single behavioral incident results in the violation of more than one
criminal statute.” Bookwalter, 541 N.W.2d at 293 (quotation omitted). “In determining
whether intentional crimes are part of a single behavioral incident, a court focuses on the
factors of time and place and considers whether the segments of conduct were motivated
by a desire to obtain a single criminal objective.” Brown, 597 N.W.2d at 305.
The state agrees that the offenses occurred during the “same incident,” as do we.
Morrison’s offenses occurred at the same location and time, and they were motivated by
a single criminal objective. Because the offenses were committed during a single
behavioral incident, Morrison may not be sentenced for both offenses. See State v.
Norregaard, 384 N.W.2d 449, 450 (Minn. 1986) (holding that section 609.035 prohibited
concurrent sentences for aggravated robbery and third-degree assault because defendant
“was convicted of the more serious form of robbery and received additional punishment
for the robbery because it was a robbery accompanied by the infliction of bodily harm”).
Accordingly, we reverse Morrison’s 15-month stayed sentence for aiding and abetting
14 third-degree assault and remand for the district court to vacate that sentence. See Brown,
597 N.W.2d at 305 (vacating the lesser of two sentences for offenses that were committed
during a single behavioral incident).
Affirmed in part, reversed in part, and remanded.