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08/13/85 STATE MINNESOTA v. JEROME E. VANN

August 13, 1985

STATE OF MINNESOTA, RESPONDENT,
v.
JEROME E. VANN, APPELLANT.



Appeal from District Court, Hennepin County, Hon. Lindsay G. Arthur, Judge, Affirmed as modified.

Considered and decided by Parker, Presiding Judge, Foley, Judge and Leslie, Judge, with oral argument waived.

The opinion of the court was delivered by: Foley

1. Defendant's criminal history score improperly included a foreign conviction for an offense in which he received a gross misdemeanor sentence by Minnesota standards.

2. The trial court did not improperly coerce a verdict or deny defendant his right to a hung jury.

3. The evidence was sufficient to sustain his conviction for attempted murder in the second degree and assault in the first degree.

4. Defendant was not denied effective assistance of counsel.

FOLEY, Judge.

Appellant Jerome Vann was convicted of attempted murder in the second degree, Minn. Stat. §§ 609.185(1), 609.19(1) and assault in the first degree, Minn. Stat. § 609.221 (1984) for a shooting which occurred outside the Elks' Club in Minneapolis. Appellant claims (1) his criminal history score was improperly computed, (2) the trial court made improper comments, (3) the evidence was insufficient and (4) he was denied effective assistant of counsel. We affirm but modify the sentence.

FACTS

In the early morning hours of July 17, 1984 appellant was at the Elks' Club in Minneapolis. He got into a fight with Anthony Early and they were kicked out of the club. Early indicated to others he did not want to leave because he had seen Winston Bickham pass appellant a gun. Shortly after, and just outside the door, appellant shot Early three times.

At the close of the evidence, the trial court warned the jury that deliberations would begin the next day following final arguments and instructions. The jury was told to be prepared for sequestration until a verdict is reached. Appellant was found guilty the next day and sentenced to imprisonment for 142 months for the attempted murder conviction, the presumptive sentence based on one-half the presumptive term for a severity level X offense and criminal history score of 5. No sentence was imposed for the assault conviction. The trial court subsequently denied appellant's motion under Minn. R. Crim. P. 27 to reduce the sentence based on allegedly erroneous inclusion of two felony criminal history points.

ISSUES

1. Did the trial court properly include two prior felony criminal history points?

2. Did the trial court's comments to the jury improperly coerce a verdict?

3. Was the evidence sufficient?

4. Was appellant denied effective ...


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