State v. Mendoza

297 N.W.2d 286, 1980 Minn. LEXIS 1579

• Court: Supreme Court of Minnesota
• Decided: September 5, 1980
• Docket: 50876
• Status: Published

Opinions

PETERSON, Justice.

Defendant was found guilty by a district court jury of a charge of attempted simple robbery, Minn.Stat. §§ 609.17 and 609.24 (1978), and was sentenced by the trial court to a maximum prison term of 5 years. On this appeal from judgment of conviction, defendant contends (1) that his conviction and sentence should be reversed as being in violation of § 609.035 or (2) that at least he should receive a new trial because the trial court erroneously (a) permitted use of a manslaughter conviction to impeach defendant’s credibility, (b) admitted evidence of an assault defendant committed on the deputy who questioned him at the scene of the crime, and (c) failed to sua sponte submit lesser offenses. We affirm.

The evidence adduced at trial established that defendant forced his way into an automobile occupied by a driver and a passenger and unsuccessfully tried to take the vehicle from them. When a deputy arrived on the scene and tried to question defendant, defendant tried to flee and he assaulted the officer.

We agree with defendant that the two offenses, the attempted robbery and subsequent assault, arose from the same behavioral incident. State v. White, 292 N.W.2d 16 (Minn.1980), and that therefore the prosecutor should have joined the two prosecutions in a single prosecution in district court rather than prosecuting the misdemeanor assault in county court and the felony offense in district court. State v. Reiland, 274 Minn. 121, 142 N.W.2d 635 (1966). Defendant pleaded guilty to the assault charged, served a 90-day jail term, and then was tried in district court on the felony charge. By failing to raise in the district court the issue of whether the serial prosecution was in violation of § 609.035, defendant is deemed to have forfeited that issue. White v. State, 309 Minn. 476, 248 N.W.2d 281 (1976); State v. White, 300 Minn. 99, 219 N.W.2d 89 (1974). However, the issue of multiple sentencing under § 609.035 was not forfeited by defendant’s failure to raise the issue in the trial court. 300 Minn, at 105-06, 219 N.W.2d at 93. Addressing this issue, we hold that the multiple-victim exception to the bar in § 609.-035 against multiple sentencing of a defendant for multiple offenses arising from the same behavioral incident applies. State v. Rieck, 286 N.W.2d 724 (Minn.1979).

Defendant’s contention that he did not receive a fair trial is meritless. The trial court did not clearly abuse its discretion in permitting impeachment by prior offenses, and therefore we sustain the trial court’s ruling on the issue. State v. Leecy, 294 N.W.2d 280 (Minn.1980); State v. Brouillette, 286 N.W.2d 702 (Minn.1979); State v. Jones, 271 N.W.2d 534 (Minn.1978). The evidence that defendant tried to flee and that he assaulted the officer who questioned him at the scene was relevant other-crime evidence. Defendant, by not requesting a cautionary instruction concerning the use of this other-crime evidence, forfeited the issue. State v. Forsman, 260 N.W.2d 160 (Minn.1977). The issue of the trial court’s failure to submit lesser offenses was forfeited by defendant’s failure to request submission or object to nonsubmission of lesser offenses. State v. Bryant, 281 N.W.2d 712 (Minn.1979).

Affirmed.