This opinion will be unpublished and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
A15-0783
State of Minnesota,
Respondent,
vs.
Ishamel Portwood Middlebrook,
Appellant.
Filed August 1, 2016
Affirmed in part, reversed in part, and remanded
Hooten, Judge
Hennepin County District Court
File No. 27-CR-14-22112
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, Stan Keillor, Special Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Worke, Judge; and Smith,
Tracy M., Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
On appeal from his conviction of aiding and abetting first-degree aggravated
robbery, appellant argues that (1) the district court clearly erred by denying his Batson
challenge to the state’s peremptory strike of the only African American prospective juror;
(2) the district court committed plain error affecting his substantial rights by admitting a
private surveillance video that had been edited by the system owner and was accompanied
by the owner’s lay opinion testimony as to what the video depicted; (3) the prosecutor
committed prejudicial misconduct by misstating the evidence and making improper
arguments during closing argument; (4) the evidence was insufficient to sustain his
conviction; (5) the district court abused its discretion by imposing a “middle of the box”
guidelines sentence; and (6) the district court erred by ordering appellant to pay restitution.
We affirm appellant’s conviction and sentence, but remand to allow appellant the
opportunity to request a restitution hearing.
FACTS
Appellant Ishamel Portwood Middlebrook was charged with one count of aiding
and abetting first-degree aggravated robbery and one count of aiding and abetting
kidnapping, arising out of an incident that took place on July 29, 2014. A jury trial was
held in January 2015. The state introduced the following evidence at trial.
Around 1:00 a.m. on July 29, the victim, H.L., left her home in South Minneapolis
to walk to a bar located at 26th Street and Lyndale Avenue. H.L. cut through a parking lot,
and then two men approached her from behind, took her purse, and ripped her backpack
off her back. Her backpack contained her driver’s license, a debit card, a small amount of
cash, and a can of mace, among other items. One of the men, who had glasses and was
wearing a t-shirt and red pants, stepped in front of H.L. The man in red pants, later
identified as Kevin Jones, demanded H.L.’s phone. She refused to give him her phone.
2
Jones pulled out a gun, pointed it at H.L.’s face, threatened to kill her, and again demanded
her phone. She gave him her phone. The other man, later identified as Jeremy Burton,
initially remained behind H.L. Burton was larger than Jones, had dreadlocks, wore a white
t-shirt, and was holding H.L.’s purse and looking through it.
Jones forced H.L. to walk south down Lyndale Avenue between him and Burton,
holding her by the neck and continuing to threaten her and demand money or anything of
value. When H.L. insisted that she did not have more money, the men accused her of
having money in her bra. H.L. took off her bra to prove to them that she did not, and Jones
threw it on the sidewalk. Jones punched H.L. in the face and hit her across the head with
the gun.
Meanwhile, a Cadillac drove south on Lyndale Avenue, turned right at 25th Street,
and pulled over just past the corner. This Cadillac was owned by Middlebrook’s girlfriend,
who had loaned it to him sometime after 11:00 p.m. on July 28 after Middlebrook’s friend,
Peter Redditt, had called and asked for a ride. The Cadillac moved in reverse several feet
and then stopped, bringing it more in line with the sidewalk on Lyndale Avenue. The
occupants of the stopped Cadillac looked north down the sidewalk toward 24th Street.
Approximately 50 seconds after stopping, the Cadillac moved forward, as H.L. and her
assailants continued walking south on Lyndale Avenue between 24th Street and 25th
Street. The Cadillac pulled into the alley of the 2400 block between Lyndale Avenue and
Aldrich Avenue, which is one block west of Lyndale.
Jones forced H.L. to turn and walk west on 25th Street toward Aldrich Avenue, still
threatening to kill her if she did anything stupid. Meanwhile, the front seat passenger in
3
the Cadillac exited the vehicle and then walked east on 25th Street, passing H.L. and her
assailants and offering H.L.’s assailants some kind of hand gesture or slap as he did so.
H.L. and the two men reached the alley where the Cadillac was stopped, walked just past
the alley, and stopped. The front seat passenger climbed the fence of a house on Lyndale
Avenue, cut through the yard and into the alley, and reentered the Cadillac. Some
communication took place between the occupants of the car and the assailants; at one point,
Jones looked over his shoulder and spoke toward the car. H.L. thought that she heard
someone say something like, “Let’s go.” Burton demanded H.L.’s passcode to her cell
phone. After she told him the passcode, Burton walked toward the Cadillac with her cell
phone and her purse and got in the back seat of the car. Jones then threatened to shoot H.L.
if she did not lie down on the ground, and when she began to do so, he ran to the Cadillac
and got in, and the vehicle drove quickly away.
H.L. immediately went to a house in which she had previously lived, called 911,
and called her bank to cancel her debit card. Police arrived while H.L. was on the phone
with the bank. The bank representative told her that an attempt had just been made to use
her card at a gas station in North Minneapolis, which was a five or ten minute drive away.
H.L. relayed the information to an officer who was present, and the officer radioed the
information to other officers.
Minneapolis Police Officer Brandon Bartholomew heard the dispatch describing the
license plate number of a vehicle involved in a robbery. Shortly thereafter, Officer
Bartholomew was advised by dispatch that a debit card taken in the robbery had been used
at the gas station, which was located less than a mile from his location. Officer
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Bartholomew eventually saw the suspect vehicle. He followed the vehicle and, when it
stopped and one of the occupants jumped out, Officer Bartholomew ordered him and
everyone in the car to show their hands.
Other officers arrived and identified the vehicle’s occupants. Middlebrook was the
driver of the vehicle, Redditt was the front passenger, Jones was a rear passenger, and
Burton was the person who had jumped out of the vehicle when it was stopped by Officer
Bartholomew. After stopping the vehicle, Officer Bartholomew recovered a gun on the
boulevard near where Burton had exited the vehicle. He also recovered H.L.’s driver’s
license and debit card from the driver’s seat of the vehicle and a can of mace from the rear
seat behind the driver. H.L. later identified Jones as the male with the gun, Burton as the
male with her backpack, and Redditt as the passenger of the Cadillac who had jumped out
during the robbery and then cut through a neighbor’s yard to get back into the vehicle.
Minneapolis Police Sergeant Kelly O’Rourke reviewed video from the gas station,
which showed the Cadillac driving into the station at 1:20 a.m. and Middlebrook exiting
the driver’s door and attempting to use H.L.’s debit card at the gas pump. Sergeant
O’Rourke interviewed Middlebrook the next day, July 30. During the interview,
Middlebrook stated that, during the early morning hours of July 29, he picked up Redditt
and then smoked marijuana and PCP and drove around. He stated that Jones and Burton
were his friends. He denied being in South Minneapolis at any point in the evening.
At trial, in addition to the testimony of the police officers and H.L., the state also
showed the jury excerpts of a multi-camera home security video that depicted some of the
events surrounding the robbery and kidnapping charges. The video belonged to J.F., a 40-
5
year resident of the neighborhood who testified regarding how the video was created and
the locations of the cameras.
The jury found Middlebrook guilty of aiding and abetting first-degree aggravated
robbery, but acquitted him of aiding and abetting kidnapping. The district court sentenced
him to 98 months in prison, which was the middle of the presumptive sentencing guidelines
range. The district court later ordered Middlebrook to pay restitution in the amount of
$1,061.44. This appeal followed.
DECISION
I.
Middlebrook argues that the district court clearly erred by overruling his Batson
objection to the state’s peremptory strike of the only African American prospective juror,
L.F. In a jury trial, each party has a limited number of peremptory challenges. Minn. R.
Crim. P. 26.02, subd. 6. “Unlike a challenge for cause, a peremptory challenge allows a
party to strike a prospective juror without having to explain the reason for the strike.” State
v. Diggins, 836 N.W.2d 349, 354 (Minn. 2013). “The Equal Protection Clause of the
Fourteenth Amendment, however, prohibits purposeful racial discrimination in jury
selection, and in particular prohibits the [s]tate from using a peremptory challenge to strike
a prospective juror on the basis of the juror’s race.” Id. (citing Batson v. Kentucky, 476
U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986)). The Minnesota Supreme Court has adopted
the three-step Batson framework for determining whether a peremptory strike was
motivated by racial discrimination. State v. Martin, 773 N.W.2d 89, 101 (Minn. 2009).
6
Under Batson: (1) the defendant must make a prima
facie showing that the prosecutor executed a peremptory
challenge on the basis of race; (2) the burden then shifts to the
prosecution to articulate a race-neutral explanation for striking
the juror in question; and (3) the district court must determine
whether the defendant has carried the burden of proving
purposeful discrimination.
Id.; see also Minn. R. Crim. P. 26.02, subd. 7(3) (codifying the three-step Batson
framework).
Whether a peremptory strike was based on racial discrimination is a factual
determination, and appellate courts “give great deference to the district court’s ruling and
will not reverse unless it is clearly erroneous.” Martin, 773 N.W.2d at 101. “[Great]
deference is warranted because the district court occupies a unique position to observe the
demeanor of the prospective juror and evaluate the credibility of the party that exercised
the peremptory challenge, and the record may not reflect all of the relevant circumstances
that the [district] court may consider.” Diggins, 836 N.W.2d at 355 (quotation omitted).
During voir dire, the district court asked if any juror had “ever been a witness in a
court case or actually testified.” L.F. reported that she had testified on behalf of the state
against her brother in a criminal case. After discussing this experience, L.F. added, “I also
was a witness when I was called on jury duty before.” The following exchange took place
as the district court tried to clarify her statement:
JUROR: Well, I wasn’t a witness but it was something like
when we went on the site and it was kind of hard for me to, you
know, it was just kind of hard for me to, you know—
THE COURT: You were on a jury before?
JUROR: Yes.
THE COURT: You didn’t have to testify did you?
JUROR: Well, no. Deliberation was a little bit difficult.
7
After establishing that L.F. had been a juror in a child abuse case, the district court
asked her, “Did you feel the process was fair?” L.F. replied, “No.” L.F. explained that she
and the other jurors were taken to the crime scene and, while at the scene, she felt like
“there wasn’t enough evidence for me to, you know, consider what [a witness] said and
what we saw.” The district court repeated its question: “I said was it fair and you said no[;]
what part of the process don’t you think was fair?” L.F. answered that she felt it was
impossible for the witness to have seen the crime from a certain vantage point. The district
court repeated, “So what part wasn’t fair, then?” L.F. replied that she and her fellow jurors
went back to the courthouse to continue deliberating, and she told the other jurors that
“there wasn’t enough evidence.” The district court again repeated, “So what part wasn’t
fair, then? Why do you say it wasn’t fair?” In response, L.F. stated, “Well everybody else
said it was—she—they was—I mean that guy that did it was innocent and I didn’t think
that he [was].” In an attempt to clarify her statement, the district court asked, “You thought
he was innocent or not innocent?” L.F. responded, “I thought he was innocent and they
thought he was guilty.” The district court asked, “[W]hat happened?” L.F. responded,
“[H]e was set free.” The district court, still trying to discern why L.F. thought that the trial
was unfair, asked, “You reached a verdict?” L.F. answered affirmatively and stated, “I
thought he was innocent.” The district court, in trying to clarify her answer, asked, “But
did[] the jury come back innocent or not guilty?” When L.F. answered, “The jury came
back, um. . . ,“ the district court reminded her that she had already said that “he was set
free.” L.F., responding in the affirmative that he was “let free so he was innocent,”
8
eventually agreed that that result was fair. In trying again to clarify L.F.’s initial statement,
the district court asked, “So then when I go back to when you say you didn’t think the
process was fair, it sounds like it worked the way it was supposed to in your case,” and
L.F. interjected, “It was just like 11 people[] against 12. I mean, I’m sorry. I’m sorry. It
was like 1 person against 12 others. You know? And they [were] trying to get me to, you
know, go the other way.”
Later, defense counsel asked L.F. if nervousness might be normal for some
witnesses, and L.F. responded “[N]o.” When asked to explain her answer, L.F. stated, “[I]f
I see—if I hear something that is not—if I hear something that is not correct, that I don’t
think that is correct, I probably would—I would sleep on something like that one.” Defense
counsel, in trying to clarify her answer, noted that what she was describing sounded like
inconsistent testimony, not nervousness. L.F. agreed. Defense counsel repeated his
question: “Okay. But going to a witness being nervous, do you think that might be pretty
normal?” L.F. answered, “Yes.”
At the close of voir dire, the prosecutor exercised a peremptory challenge of L.F.,
and defense counsel raised a Batson objection. Defense counsel noted that L.F. was the
only African American member of the venire and that Middlebrook was African American.
Defense counsel argued that, “if anything, [L.F.] would be a pro-prosecution witness”
because she testified for the state in another case. The district court, without determining
whether Middlebrook had made a prima facie showing that the prosecutor exercised his
peremptory challenge on the basis of race (step one of Batson), allowed the prosecutor to
articulate a race-neutral explanation for the strike (step two). The prosecutor stated that he
9
struck L.F. due to the “confusing nature” of her responses to the district court’s question
about fairness in the judicial system and to defense counsel’s question about witness
nervousness. The prosecutor explained: “If I have . . . a juror that I think is having . . .
difficulty in analyzing the information and questions that [are] coming in and not weighing
those in a logical way, that’s always a juror that is a concern to me. That’s why I struck
her.”
The district court agreed with the prosecutor that “[t]here definitely was confusion”
in her responses. The district court then concluded that Middlebrook had not met his
burden under step one because, while L.F. was a racial minority, the circumstances raised
no inference that the strike was based on her race. The district court noted that an Asian
American member of the venire was going to be seated on the jury. The district court
proceeded to analyze step two, “just for appellate purposes.” The district court stated that
it “accept[ed]” the prosecutor’s race-neutral reason for striking L.F., noting that “she
certainly was confused about . . . her experience as a juror and a witness.” The district
court stated that, because it accepted the prosecutor’s race-neutral reason, “we don’t even
get to the third prong.”
We conclude that the district court improperly applied the Batson framework
because it allowed the prosecutor to articulate a race-neutral explanation for the strike
before ruling on whether defense counsel had made a prima facie showing, and it did not
give defense counsel the opportunity to prove that the prosecutor’s race-neutral explanation
was pretextual. See Minn. R. Crim. P. 26.02, subd. 7(3) (describing the three-step
analysis). The supreme court has stated that, if the district court errs in applying the Batson
10
framework, the reviewing court will apply Batson by “examin[ing] the record without
deferring to the district court’s analysis.” State v. Pendleton, 725 N.W.2d 717, 726 (Minn.
2007).
The first step is to determine whether Middlebrook made out a prima facie case of
racial discrimination. Id. “The opponent of a peremptory challenge establishes a prima
facie case under Batson by showing (1) that a member of a protected racial group has been
peremptorily excluded from the jury and (2) that circumstances of the case raise an
inference that the exclusion was based on race.” Id. (quotation omitted). “Whether the
circumstances of the case raise an inference of discrimination depends in part on the races
of the defendant and the victim.” Angus v. State, 695 N.W.2d 109, 117 (Minn. 2005).
“[An] inference of discrimination can be drawn by proof of disproportionate impact upon
the racial group . . . .” State v. Moore, 438 N.W.2d 101, 107 (Minn. 1989). Here, the
victim was white, while Middlebrook and L.F. were African American. And, the
peremptory strike of L.F. had a disproportionate impact upon the racial group because she
was the only African American prospective juror. These circumstances are likely sufficient
to raise an inference of discrimination and to satisfy step one of Batson, but we need not
resolve this question because Middlebrook’s claim fails on the second and third steps.
The second step is to determine whether the prosecutor provided a race-neutral
explanation for the peremptory strike. Pendleton, 725 N.W.2d at 726. “[T]he explanation
will be deemed race-neutral unless a discriminatory intent is inherent in the prosecutor’s
explanation.” Id. (quotation omitted). Here, the prosecutor’s stated reason for the strike
was the “confusing nature” of some of L.F.’s answers. This is a race-neutral explanation,
11
as Middlebrook concedes, because there is nothing inherently discriminatory in the
prosecutor’s concern about L.F.’s ability to comprehend the nature of court proceedings.
The third step is to determine “whether the defendant carried his burden of proving
that the peremptory strike was motivated by racial discrimination and that the proffered
reasons were merely a pretext for the discriminatory motive.” Id. (quotation omitted). The
district court did not give defense counsel an opportunity to respond to the state’s reason
for the strike. However, in reviewing the record, we conclude that defense counsel would
not have been able to rebut the state’s race-neutral reason. First, during her exchange with
the district court, L.F. had difficulty differentiating between her roles as a witness and as a
juror in prior trials. Second, L.F. had great difficulty in differentiating between fairness in
the criminal justice system and the stress and so-called unfairness of being a holdout juror
in a previous trial where the other jurors eventually came around to her position that the
defendant was not guilty. Third, when defense counsel asked L.F. about whether
nervousness was normal for a witness who is testifying, she answered, “No” and when
pressed for an explanation, her answer was nonresponsive and she seemed confused. Only
a few questions later, she changed her answer to, “Yes.” Given these clear indications that
L.F. was confused with basic questioning, which would likely impair her ability to
understand the district court’s instructions regarding the law and to communicate with
other jurors, we conclude that defense counsel would not have been able to prove that the
prosecutor’s stated reason for the strike was merely a pretext for excluding L.F. based on
her race. Accordingly, the district court did not clearly err by overruling Middlebrook’s
Batson objection.
12
II.
The district court allowed into evidence, without objection, a composite videotape
taken from multiple surveillance cameras installed by J.F. at his residence near 25th Street
and Lyndale Avenue, which captured video of the robbery. Middlebrook argues that the
district court erred by admitting this evidence because the videotape was “highly edited”
and J.F.’s lay opinion testimony during the showing of the videotape was improper.
Because Middlebrook failed to object at trial, we review for plain error affecting
substantial rights. State v. Smith, 825 N.W.2d 131, 138 (Minn. App. 2012), review denied
(Minn. Mar. 19, 2013). The plain error standard requires Middlebrook to show (1) error,
(2) that was plain, and (3) that affected his substantial rights. Id. “If all three prongs are
met, this court may correct the error only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (quotation omitted). “An error is plain if it
is clear and obvious; usually this means [that the error] violates or contradicts case law, a
rule, or an applicable standard of conduct.” State v. Matthews, 779 N.W.2d 543, 549
(Minn. 2010). Plain error “affects a defendant’s substantial rights if there is a reasonable
likelihood that the error had a significant effect on the jury’s verdict.” State v. Milton, 821
N.W.2d 789, 809 (Minn. 2012) (quotations omitted).
Edited videotape
J.F. has installed a total of 16 high-definition security cameras around his house,
with eight on the front of the house and eight on the back. The video from the cameras
feeds into two recorders and can also be viewed in real time from inside J.F.’s house. J.F.
has worked with police and advised businesses on the installation and use of video
13
surveillance systems. His cameras record portions of Lyndale Avenue, 25th Street, and the
alley between Lyndale Avenue and Aldrich Avenue. He also has a motion detection system
installed in his backyard that triggers high-powered lights and an alarm. J.F.’s cameras
recorded events that occurred on Lyndale Avenue, on 25th Street, and in the alley behind
Lyndale Avenue in the early morning hours of July 29, 2014.
Middlebrook concedes that unedited surveillance video footage from J.F.’s video
cameras “would have been admissible, as against a foundational objection, based on
[J.F.’s] personal knowledge of the camera system and his recognition of the images
captured by it.” See Minn. R. Evid. 901(b)(1), (9) (indicating that authentication
requirement may be satisfied if witness has knowledge of evidence or describes a process
or system that produces an accurate result). But, Middlebrook contends that the district
court plainly erred by admitting “a heavily edited version of the videotape.” He points out
that the videotape consists of a composite of camera views that J.F. selected and edited, at
times rewinding, at times slowing the playback speed, and at times showing a single camera
view. He also contends that the videotape was edited to reflect J.F.’s “highly incriminatory
viewpoint.”
Middlebrook cites two cases in support of his argument. In State v. Brown, the
supreme court stated that when a videotape is duplicated and digitized, “there is the risk of
manipulation or distortion.” 739 N.W.2d 716, 723 (Minn. 2007). But, Brown does not
support Middlebrook’s contention that the district court erred by admitting the videotape
because J.F. acknowledged during his testimony that he manipulated the video, presumably
in order to capture the best views of what he considered to be the most relevant video
14
segments for the jury to see. In State v. Ali, the supreme court held that the district court
did not abuse its discretion by admitting expert testimony to explain why surveillance
videotapes were “digitally manipulated to clarify details in the tape[s].” 855 N.W.2d 235,
250–52 (Minn. 2014). However, Ali is inapposite because the current case does not involve
expert testimony. Under these circumstances, and in light of this case law, we conclude
that even if the district court erred by allowing the state to present an edited version of the
videotape, Middlebrook has not shown that any error was plain. See Matthews, 779
N.W.2d at 549 (stating that error is “plain” if it “violates or contradicts case law, a rule, or
an applicable standard of conduct”).
Lay opinion testimony
Middlebrook next argues that the district court plainly erred by allowing J.F. to offer
improper lay opinion testimony while the video was played for the jury. The rules of
evidence provide:
If the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (a) rationally based on
the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination
of a fact in issue.
Minn. R. Evid. 701. “Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the
trier of fact.” Minn. R. Evid. 704. To determine whether opinion testimony is helpful to
the jury, “a distinction should be made between opinions as to factual matters,” which are
15
helpful, “and opinions involving a legal analysis or mixed questions of law and fact,” which
are unhelpful. Minn. R. Evid. 704 1977 comm. cmt.
While testifying, J.F. described to the jury what the video depicted and showed the
jury a diagram he had drawn that illustrated the scene. While the jury viewed the Cadillac
turning west onto 25th Street, parking, and moving in reverse, J.F. stated that the driver
would be able to see down the sidewalk looking north on Lyndale Avenue. J.F. then stated
that the occupants of the Cadillac were “looking down the sidewalk to see what they can
see down [t]here.” Defense counsel objected to this last statement on foundational grounds,
arguing that J.F. could testify as to what the video showed, but that it was improper for him
“to characterize what [the] people in the car [were] doing.” The district court sustained the
objection. Later, the district court sustained another defense objection when J.F. stated that
the occupants of the Cadillac could see H.L. and her assailants from inside the vehicle
because H.L. and her assailants were walking under a streetlight. On two other occasions
on direct examination, however, J.F. testified that the occupants of the vehicle were looking
north on Lyndale Avenue, which defense counsel did not object to. To the extent that
Middlebrook is arguing that the district court erred by not sua sponte striking this testimony
or admonishing J.F., this argument is unavailing because J.F. was testifying as to his
opinion of what the occupants of the vehicle were doing, based on his perception of the
videotape, and his testimony was helpful to the jury’s determination of Middlebrook’s
knowledge of the robbery. See Minn. R. Evid. 701 (requiring lay opinion testimony to be
based on witness’s perception and be helpful to jury). J.F. did not testify as to the “state of
16
mind” of the Cadillac’s occupants, as Middlebrook argues, but rather to his own
observations.
Middlebrook’s general challenge to J.F.’s opinion testimony also fails. J.F.’s
testimony was based on his personal knowledge of the area shown in the videotape and the
area outside the reach of the cameras, as well as his personal experience with the video
surveillance system that he had set up and maintained. By orienting the jury as to the
location and direction of the cameras, describing the area, and recounting the events that
he witnessed, J.F.’s testimony assisted the jury in understanding the videotape footage and
in assessing Middlebrook’s role in the robbery. See State v. Pak, 787 N.W.2d 623, 629
(Minn. App. 2010) (“A lay witness’s opinion or inference testimony may help the jury by
illustrating the witness’s perception in a way that the mere recitation of objective
observations cannot.”). Moreover, J.F.’s opinion testimony did not involve legal analysis,
but related to factual matters: whether the vehicle’s occupants could have seen or did see
H.L. and her assailants walking south on Lyndale Avenue, and whether the vehicle’s
occupants waited for the assailants in the alley behind J.F.’s house. See Minn. R. Evid.
704 1977 comm. cmt. (stating that witness’s testimony as to factual matters are helpful to
jury). We therefore conclude that Middlebrook has not shown that the district court plainly
erred by allowing J.F. to offer his lay opinion testimony.
III.
Middlebrook argues that the prosecutor committed misconduct during closing
argument by (1) repeatedly stating that certain evidence was “undisputed”; (2) making an
“accountability” argument; and (3) misstating the evidence by declaring that Middlebrook
17
dropped off Jones and Burton near 22nd Street and Lyndale Avenue. We review claims of
unobjected-to prosecutorial misconduct for plain error affecting substantial rights. State v.
Ramey, 721 N.W.2d 294, 299 (Minn. 2006). Under the supreme court’s modified plain
error test, the defendant must show that the prosecutor’s conduct constitutes error that was
plain, but the burden then shifts to the state “to demonstrate lack of prejudice; that is, [that]
the misconduct did not affect substantial rights.” Id. at 302.
During closing argument, a prosecutor “may present all legitimate arguments on the
evidence and all proper inferences that can be drawn from that evidence.” State v. Munt,
831 N.W.2d 569, 587 (Minn. 2013) (quotation omitted). In reviewing claims of
prosecutorial misconduct, appellate courts review the closing argument “as a whole, rather
than just selective phrases or remarks that may be taken out of context or given undue
prominence to determine whether reversible error has occurred.” Id. (quotation omitted).
There is no merit to Middlebrook’s argument that the prosecutor’s reference to
certain evidence being undisputed, as well as his entreaty to the jury that it hold
Middlebrook accountable, constituted misconduct. At the beginning of his closing
argument, the prosecutor stated that there was no dispute in this case that a robbery
occurred and that the jury’s job was to decide whether Middlebrook aided and abetted that
robbery. This is nothing like what happened in State v. Porter, the case Middlebrook relies
on, where the supreme court concluded that it was prosecutorial misconduct for the
prosecutor to refer to the defendant’s failure to impeach one of the state’s witnesses by
using the phrase “without impeachment by any cross-examination,” reasoning that “[a]
prosecutor may not comment on a defendant’s failure to call witnesses or to contradict
18
testimony.” 526 N.W.2d 359, 364–65 (Minn. 1995). As to the prosecutor’s statement
urging the jury to hold Middlebrook accountable for his actions on the night of the offense,
the argument was very brief and came at the end of a lengthy closing argument and rebuttal.
As to the prosecutor’s statement that Middlebrook dropped off Jones and Burton
near the Super America, the prosecutor stated:
Due to the timing of this and then the diagram by [J.F.], you
literally know that Cadillac drove down Lyndale Avenue as
[H.L.], Mr. Burton, [and] Mr. Jones were walking down that
[sidewalk]. That car went right past those two men and that
lady. So make no mistake, at some point those men were
dropped off somewhere. . . .
And that Cadillac—so he knows he’s got two occupants
less than he used to have and now those two occupants that are
hard to miss, Mr. Red Pants and the big dude, cruising down
that street, now with a girl wedged in between them, now with
a gun to the head of that girl that’s wedged in between them.
(Emphasis added.) Middlebrook is correct that the state introduced no evidence of what
happened before the robbery and, specifically, of whether Middlebrook dropped off Jones
and Burton before the robbery. But, the state argues that, based on all the evidence, it was
reasonable to infer that Middlebrook dropped the two assailants off, and a prosecutor may
argue reasonable inferences. State v. Bobo, 770 N.W.2d 129, 142 (Minn. 2009) (“During
closing argument, a prosecutor may argue all reasonable inferences from evidence in the
record.”). We agree that it was a fair inference that Middlebrook dropped off Jones and
Burton before the robbery. Accordingly, we conclude that Middlebrook has not shown
that the prosecutor’s argument constituted plain error.
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IV.
Middlebrook challenges the sufficiency of the evidence, arguing that the evidence
produced at trial did not exclude a rational hypothesis that his presence near the scene of
the aggravated robbery was not intended to aid and abet that crime. He does not, however,
dispute that Jones and Burton committed aggravated robbery. “In reviewing a sufficiency
of the evidence challenge, we review the record in the light most favorable to the conviction
to determine whether the evidence reasonably could have permitted the jury to convict.”
State v. Henderson, 620 N.W.2d 688, 704–05 (Minn. 2001).
“Whoever, while committing a robbery, is armed with a dangerous weapon or any
article used or fashioned in a 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 (2012). Under the accomplice liability
statute, “[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 be guilty of aiding and abetting a crime, the defendant does
not need to have participated actively in the actual commission
of the crime. But the [s]tate must prove that the defendant had
knowledge of the crime and intended his presence or actions to
further the commission of that crime.
State v. Hawes, 801 N.W.2d 659, 668 (Minn. 2011) (quotation and citation omitted). To
determine whether a defendant possessed the requisite state of mind for accomplice
liability, the jury may consider circumstantial evidence, “including the defendant’s
presence at the scene of the crime, a close association with the principal offender before
20
and after the crime, a lack of objection or surprise under the circumstances, and flight from
the scene of the crime with the principal offender.” State v. McAllister, 862 N.W.2d 49,
53 (Minn. 2015).
Because there is no direct evidence of whether Middlebrook intended to aid and
abet the aggravated robbery, we apply the two-step circumstantial evidence test. See State
v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). “The first step is to identify the
circumstances proved. In identifying the circumstances proved, we defer to the jury’s
acceptance of the proof of these circumstances and rejection of evidence in the record that
conflicted with the circumstances proved by the [s]tate.” Id. at 598–99 (quotations and
citation omitted). In other words, “we consider only those circumstances that are consistent
with the verdict. This is because the jury is in the best position to evaluate the credibility
of the evidence even in cases based on circumstantial evidence.” Id. at 599 (citation
omitted). “The second step is to determine whether the circumstances proved are
consistent with guilt and inconsistent with any rational hypothesis except that of guilt.” Id.
(quotations omitted).
The evidence introduced at trial established the following circumstances.
Middlebrook borrowed his girlfriend’s Cadillac sometime after 11:00 p.m. on July 28,
2014, in order to give his friend Redditt a ride. Around 1:00 a.m. on July 29, Middlebrook’s
friends, Jones and Burton, robbed H.L. at gunpoint in South Minneapolis. During the
robbery, H.L., Jones, and Burton walked south on Lyndale Avenue toward 25th Street. As
the three were walking, the Cadillac drove past them southbound on Lyndale Avenue,
turned west onto 25th Street, and pulled over just past the corner. The Cadillac reversed
21
and moved backwards several feet, bringing the vehicle more in line with the sidewalk on
Lyndale Avenue. The surveillance video appears to show all three occupants of the
Cadillac looking north down the sidewalk toward 24th Street, where H.L. and her assailants
were walking south toward the Cadillac. Approximately 50 seconds later, the Cadillac
moved forward again and turned into the alley between Lyndale and Aldrich Avenues. The
front passenger got out of the Cadillac and walked east along 25th Street, as H.L. and her
assailants turned west onto 25th Street. As the front passenger passed the group, he offered
the assailants some kind of hand gesture or slap. The front passenger then jumped the
fence of a house on Lyndale Avenue, cut through the yard, and returned to the alley, where
he got back in the Cadillac. Moments later, Burton and Jones got in the back seat of the
Cadillac, which quickly drove away. Minutes later, the Cadillac pulled into a North
Minneapolis gas station. Middlebrook, the driver, got out and tried to use H.L.’s debit card
at the gas pump. Shortly thereafter, police spotted the Cadillac and effected a traffic stop.
Middlebrook pulled the Cadillac over, and Burton tried to flee, tossing the gun that Jones
had used during the robbery. The Cadillac’s occupants included Middlebrook, Redditt,
Jones, and Burton. Police found the victim’s debit card, driver’s license, and mace in the
Cadillac.
These circumstances proved are consistent with guilt because they indicate that
Middlebrook knew that Jones and Burton were robbing H.L. and that Middlebrook
intended to further the commission of that crime by being the getaway driver.
Middlebrook argues that the circumstances proved are also consistent with a theory
of innocence: that his “mere presence” near the scene of the robbery was not intended to
22
aid and abet that crime. Middlebrook reasons that (1) there was no evidence that he
dropped off Jones and Burton prior to the robbery; (2) when Jones and Burton were forcing
H.L. to walk south on Lyndale Avenue, “it was not obvious that a crime was occurring”;
(3) the state’s evidence did not show a “plan for a ‘getaway’ car”; and (4) Middlebrook’s
driving up the alley and his later use of H.L.’s debit card does not show foreknowledge of
the robbery. We are not persuaded. Middlebrook completely ignores or minimizes the
evidence of the three occupants of the Cadillac backing up to get a better view of the
ongoing robbery, which they watched for approximately 50 seconds, as well as the
communicative gesture between the front passenger of the Cadillac and the assailants
shortly before the assailants released H.L. and got into the Cadillac. We conclude that the
circumstances proved are inconsistent with Middlebrook’s theory of innocence.
V.
Middlebrook next challenges his sentence. Based on his criminal history score and
the severity of the crime, the presumptive sentencing guidelines range for his conviction
was an executed prison sentence of 84 to 117 months, with 98 months as the middle of the
box. See Minn. Sent. Guidelines 4.A (Supp. 2013). Middlebrook argues that the district
court abused its discretion by imposing a sentence of 98 months instead of 84 months given
his “minor role” in the offense, pointing out that the same sentencing judge allegedly
imposed sentences of 56 and 68 months on the two principal offenders, who allegedly
pleaded guilty to their offenses. He also argues that, by imposing a middle of the box
sentence rather than a bottom of the box sentence, the district court “penalized” him for
going to trial rather than pleading guilty.
23
A district court must impose a sentence within the presumptive range under the
Minnesota Sentencing Guidelines unless the case involves “identifiable, substantial, and
compelling circumstances.” Minn. Sent. Guidelines 2.D.1 (Supp. 2013). “All three
numbers in any given cell [on the sentencing guidelines grid] constitute an acceptable
sentence . . . .” State v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008). We review the
district court’s sentencing decision for an abuse of discretion. State v. Delk, 781 N.W.2d
426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010). So long as the
sentencing court “carefully evaluated all the testimony and information presented before
making a [sentencing] determination,” we will not interfere with the district court’s
exercise of its discretion. State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011)
(quotation omitted).
Our review of the sentencing transcript indicates that the district court carefully
evaluated all of the arguments of counsel and the other information that the district court
had before it, including the presentence investigation report, before making its sentencing
determination. Middlebrook took a risk when he decided to plead not guilty and go to trial,
and the risk he took was that, if the jury found him guilty, he would likely receive a
guidelines sentence, which was greater than the sentence he would have received had he
accepted the state’s plea offer. It is not the sentencing judge’s role to renegotiate a sentence
with a defendant who has been convicted. The district court did not “penalize”
Middlebrook for taking his case to trial, and it did not abuse its discretion by sentencing
him to the presumptive, middle of the box, guidelines sentence of 98 months in prison.
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VI.
Finally, Middlebrook argues that there is no factual basis for the amount of
restitution ordered and that there is no evidence that he was ever served with the restitution
order or given the opportunity to request a restitution hearing. Prior to sentencing, the state
and Middlebrook negotiated a resolution to his two other pending felony cases. At the
sentencing hearing, the state agreed to dismiss those cases, provided that the district court
reserve the issue of restitution to the victim in one of the cases. This agreement was noted
in the warrant of commitment. The issue of restitution for this case was not raised during
the sentencing hearing. Five days after sentencing, the district court filed an order requiring
Middlebrook to pay restitution to H.L. in the amount of $1,061.44. The order indicated
that the restitution obligation was joint and several with Middlebrook’s co-defendants.
District courts have “broad discretion” in awarding restitution, and appellate courts
will reverse a restitution award only if the district court abuses that discretion. See State v.
Tenerelli, 598 N.W.2d 668, 671–72 (Minn. 1999). In considering whether to order
restitution, the district court must consider the economic loss sustained by the victim and
the financial resources of the defendant. Minn. Stat. § 611A.045, subd. 1(a) (2014).
The restitution order does not give any factual basis for the restitution award, and
the record does not contain an affidavit of the victim, or any other evidence, to provide
such a basis. Further, there is no indication in the record that Middlebrook was given notice
of the restitution order or that he was given an opportunity to request a restitution hearing,
as due process requires. See Hughes v. State, 815 N.W.2d 602, 606 (Minn. 2012)
(concluding that appellant’s due process rights were not violated when he received notice
25
of restitution claim and received restitution hearing); see also Minn. Stat. § 611A.045,
subd. 3(b) (2012) (“An offender may challenge restitution, but must do so by requesting a
hearing within 30 days of receiving written notification of the amount of restitution
requested, or within 30 days of sentencing, whichever is later.”). The state does not appear
to contest Middlebrook’s assertion that the record does not contain a factual basis for the
restitution award. And, the state concedes that the record is silent as to whether
Middlebrook was served with the restitution order. Accordingly, we reverse the restitution
order and remand for the district court to allow Middlebrook the opportunity to request a
restitution hearing.
Affirmed in part, reversed in part, and remanded.
26
State of Minnesota v. Ishamel Portwood Middlebrook
Combined Opinion