State of Minnesota v. Joseph Cody Morrison

This opinion will be unpublished and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 UNPUBLISHED OPINION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

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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.

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 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

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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,

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“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

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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

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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

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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:

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 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

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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.

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 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

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 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

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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

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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.

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