STATE OF MINNESOTA IN COURT OF APPEALS

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-97-1441
State of Minnesota,Appellant,

vs.

Charles Maurice Bugg,
Respondent.

Filed March 3, 1998 Reversed and Remanded Kalitowski, Judge
Washington County District CourtFile No. K0965130

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Richard M. Arney, Washington County Attorney, Eric C. Thole, Assistant County Attorney, Washington County Government Center, 14900 61^st Street North, Stillwater, MN 55082 (for appellant)

Louis E. Torinus, 106 S. Main, P.O. Box 142, Stillwater, MN 55082 (for respondent)

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.

U N P U B L I S H E D O P I N I O N KALITOWSKI, Judge
The state challenges the district court's grant of judgment of acquittal following a jury verdict finding respondent Charles Maurice Bugg guilty of aggravated robbery. We reverse and remand for a reinstatement of the jury's verdict and sentencing.

D E C I S I O N On October 12, 1996, respondent Charles Maurice Bugg grabbed the victim's purse as she was getting into her car after shopping. The victim did not let go of her purse, and respondent pulled the victim to the ground and dragged her for six or eight feet. When the victim let go of her purse, respondent ran off, dropping the purse along the way. At respondent's trial, the victim testified that she: (1) had scrapes on her elbows; (2) injured her right hip; (3) has continuing pain in her right shoulder; and (4) continues to have limited use of one hand.
The jury convicted respondent of aggravated robbery and the lesser included offenses of simple robbery and theft from a person. At sentencing, the district court sua sponte issued a judgment of acquittal for aggravated robbery stating: (1) there was insufficient evidence to support an aggravated robbery conviction because the crime was not more serious than a typical simple robbery; and (2) it had erred in giving the aggravated robbery instruction. Respondent did not make a motion for judgment of acquittal at any time during or after the trial, nor did he make a motion for a new trial.
"[A] motion of acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonably minded jurymust have a reasonable doubt as to the existence of any of the essential elements of the crime charged."

United States v. Frol, 518 F.2d 1134, 1137 (8th Cir. 1975) (quoting United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973)).
In passing upon the defendant's post-trial motion for judgment of acquittal notwithstanding the jury's verdict, it was not the prerogative of the district court to resolve conflicts in the testimony, or to pass upon the credibility of witnesses or the weight to be given their testimony; those were jury functions; and the district court was not at liberty to set aside the verdict of the jury simply because the trial judge may have thought that the jury reached the wrong result. The district court was required, and we are required, to view the evidence in the light most favorable to the government, and to give the government the benefit of all favorable inferences reasonably to be drawn from the evidence. And if the verdict of the jury was sustained by substantial evidence, it should not have been set aside by the district court on factual grounds.

United States v. Hemphill, 544 F.2d 341, 344 (8th Cir. 1976).
Where there is a challenge to the sufficiency of the evidence, our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
Minn. Stat. § 609.245, subd. 1 (1996), defines "aggravated robbery" in the first degree:
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 * * *.

(Emphasis added.) "Bodily harm," as used in the definition of "aggravated robbery," means: "physical pain or injury, illness, or any impairment of physical condition." Minn. Stat. § 609.02, subd. 7 (1996).
This court has held that the aggravated robbery and simple robbery statutes do not impermissibly overlap, because they are "clear and describe different behavior." State v. Burrell, 506 N.W.2d 34, 37 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). The aggravated robbery statute requires that the victim be subjected to pain or injury. Id. Simple robbery, on the other hand, only requires mere force. Id.
In order to elevate a simple robbery to aggravated robbery, the statute requires only that, while committing a robbery, the defendant either be armed with a dangerous weapon or inflict bodily harm.

State v. Kvale, 302 N.W.2d 650, 653 (Minn. 1981).
In State v. Johnson, 277 Minn. 230, 237, 152 N.W.2d 768, 773 (1967), the supreme court found evidence of bodily harm sufficient to support an aggravated robbery conviction where the defendant: (1) took the victim's arm and either pushed or pulled him out of the car; (2) took the victim's wallet out of his pocket and cash out of his front shirt and pants pockets; (3) hit him in the chest causing his glasses to fall; and (4) bruised the victim's hip. Id. at 232, 152 N.W.2d 770. Relying on Johnson, this court found that a defendant's conduct in knocking the victim to the ground and dragging her into an alley while taking her jewelry was sufficient to support an aggravated robbery conviction. State v. Perez, 404 N.W.2d 834, 840 (Minn. App. 1987), review denied (Minn. May 20, 1987).
Further, the district court's reliance on State v. Kimmons, 502 N.W.2d 391 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993), is misplaced. Although the defendant in Kimmons was convicted of simple robbery, there is no indication that the defendant was charged with aggravated robbery and the issue of whether his conduct constituted aggravated robbery was neither presented to, nor addressed by, this court. Id. at 393.
Viewing the evidence in a light most favorable to the conviction, we conclude the evidence was sufficient to permit the jurors to convict respondent of aggravated robbery. The aggravated robbery instruction properly required a finding of bodily harm, and the victim's testimony provided evidence of bodily harm. Further, the jury's finding that respondent's conduct constituted aggravated robbery is consistent with both Perez and Johnson.
The district court's stated disagreement with the prosecutor's charge is not a proper basis for granting a judgment of acquittal when the jury's verdict was supported by sufficient evidence.
Under established separation of powers rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor's charging authority.

State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996).
Finally, because the state did not raise the issue on appeal, we do not address whether the district court erred procedurally by granting the motion for judgment of acquittal sua sponte after the jury's verdict and after the specified time period for such a motion to be raised.
Reversed and remanded.