State of Minnesota, Respondent, vs. Fredy Rene Palma Espinal, Appellant.

This opinion will be unpublished and may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1967

State of Minnesota,

Respondent,

vs.

Fredy Rene Palma Espinal,

Appellant.

Filed September 21, 2004

Affirmed

Randall, Judge

            Washington County District Court

No. K2-03-1908

John M. Stuart, State Public Defender,Scott G. Swanson, Lydia Maria Villalvalijo, Assistant Public Defenders, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

Doug Johnson, Washington County Attorney, Eric Thole, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN  55082 (for respondent)

            Considered and decided by Randall, Presiding Judge, Willis, Judge, and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

RANDALL, Judge

On appeal from his conviction of attempted escape from custody, appellant argues that (1) the evidence is insufficient to prove that he intended to escape from jail; and (2) his actions were so unlikely to achieve an escape that the defense of "inherent impossibility" should apply.  We affirm. 

FACTS

            At the time of the offense, appellant Fredy Espinal was an inmate in the Washington County Jail.  Appellant had been in jail since July 2002 for a second-degree murder conviction and was awaiting sentencing.  Appellant occupied cell C203, one of five other cells contained in a "pod" of cells known as "C200."  This pod is adjacent to "cluster control," an area where a corrections officer manages and monitors C200 and other pods. 

At least once per day, appellant would leave his pod to visit the recreational facilities, attend jail programs, or receive other services.  To exit pod C200 and visit other areas of the jail, it is necessary to go through five secured doorways.  The final door is a "sally port," which means that the door behind the person exiting must lock before the final door will open.  At every door, voice identification is needed to pass and at some doors visual identification is required.  To obtain access through any of these doors, a person must obtain the consent of master control.  The elevator in the facility is monitored by intercom and video camera and is controlled exclusively by master control. 

            C200 goes into lockdown three times a day.  During lockdown, inmates must return to their cells and shut the cell doors behind them.  Once all doors are secure, a correctional officer visually inspects the cells to make sure the inmates are in their cells. 

On March 15, 2003, at approximately 10:25 p.m., correctional officers attending to C200 conducted a lockdown.  By looking on the security monitor, it became evident to cluster control that appellant's cell door was not secure.  Over intercom, five verbal commands were given to appellant to secure his cell door but appellant did not respond.  Three correctional officers then went to appellant's cell and discovered he was missing.  Officers later found appellant hiding in the shower room, wearing clothes.  Officers did not find any weapons or contraband on appellant.  When examining appellant's cell, officers found a "dummy" under the linens of appellant's bed, placed there to make it seem as though a human body was sleeping in the bed.  As with all attempted escapees, appellant was quickly transferred to the jail's segregation unit.

Appellant was charged with one count of attempted escape from custody.  During his jury trial, appellant testified that he made numerous requests to be transferred to a different housing unit to avoid other inmates from harassing him about his case and to use the recreation area and library.  Then appellant got creative and stated he had received three letters from correctional officers stating that if he cooperated with a correctional officer training program on how to handle prisoner escapees, he would be transferred to a better cell within the jail and receive additional privileges.  Appellant offered this as a reason for why he put a dummy in his bed before lockdown and then went and hid in the shower room.  According to appellant, officers not part of the training staff were to make inferences from the dummy in his cell and then go and try to find him. Appellant testified that he received the letters under his cell door.  At trial, appellant was unable to produce any of the letters he claimed he received from the correctional officers asking him to be part of their "escape training program."  Appellant claimed they had been removed from his cell.  Appellant testified that when he made the dummy and tried to escape, he was only following orders from correctional officers outlined in the letters.

The jury heard appellant's story, deliberated, and found appellant guilty of attempted escape from custody.  This appeal follows.

D E C I S I O N

In reviewing a sufficiency-of-the-evidence challenge on appeal, the evidence must show that a reasonable juror could reach the verdict rendered based on the evidence provided.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  "A conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence."  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (citations omitted).  But "[w]hile it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence."  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1990) (citation omitted).  Circumstantial evidence can be the basis for a conviction as long as the only reasonable inferences that can be made from the evidence are that the defendant is guilty and there are no contrary reasonable hypotheses.  State v. Anderson, 379 N.W.2d 70, 75 (Minn. 1985).  A jury, however, is in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  Webb, 440 N.W.2d at 430.  This court must assume that the jury believed the state's witnesses and did not believe any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  

1.      Sufficiency of the Evidence

The crime of escape from custody requires that the perpetrator depart from custody without lawful authority or fail to return after having been granted temporary leave.  Minn. Stat. § 609.485, subd. 1 (2002).  To prove an attempt of a crime, it must be shown that the perpetrator had the intent to commit the crime and took a substantial step towards the commission of the crime.  Minn. Stat. § 609.17, subd. 1 (2002).   An attempt to commit a crime requires specific intent because it is illogical to try to commit a crime based on recklessness or negligence.  State v. Zupetz, 322 N.W.2d 730, 734 (Minn. 1982).  Specific intent can be proven by circumstantial evidence.  State v. Johnson, 374 N.W.2d 285, 288 (Minn. App. 1985). 

Appellant does not argue that the inference made by the jury (that he attempted to escape) was unreasonable.  Instead, appellant had two theories, one at trial and one for appeal.  At trial, appellant testified that correctional officers asked him to attempt an escape as part of a training program and promised him a cell transfer for his cooperation, which led to his hiding in the shower room after he had placed a dummy in his bed clothes to simulate himself being present in the cell.  Appellant does not assert this argument on appeal.  His failure at trial to produce the documentation from the prison staff that he claimed had been given to him requesting his cooperation in this "training program" would have been a problem, had he carried this argument through appeal.  Since he abandoned the "training program" argument, we move on to appellant's other theory.

At trial, appellant postured that he had repeatedly requested administration to transfer him to a different housing facility.  This argument appellant continues on appeal.  Appellant now argues that he intended to instigate a housing transfer through disobedience and noncompliance.  This theory differs from appellant's theory at trial.  At trial, appellant testified that he desired a transfer within the jail, but, instead of testifying that he would somehow get a transfer by disobedience, he testified he would get the transfer by cooperating with the correctional officers' training program.  We understand appellant's "civil disobedience" argument, but it does not persuade us.

Finally, appellant argues that he really never intended to escape, that he only wanted a transfer within the prison, and that his actions "worked," as he got transferred from his cell to segregation.  We do not understand appellant's argument.  While all attempted escapees are transferred into segregation for a period of time, an attempted escape within a prison is not an action likely calculated to bring you into favor with the administration, and to get you transferred to whatever unit you would like to go to.  An attempted escape remains an attempted escape, even if the argument were made, "Gee, segregation is better than the unit I am in now."

Even putting the best spin on appellant's argument, the existence of a dummy in his bed in his cell, his presence hiding in the shower room, and the total lack of any corroboration that correctional officers put him up to this as part of a training program, support the jury's finding that appellant intended to escape from custody.  State v. Brocks, 587 N.W.2d 37, 42 (Minn. 1998) (stating that the jury is in the best position to evaluate the credibility of witnesses and weigh evidence, and therefore its verdict is entitled to deference). 

2.  Inherent Impossibility

Appellant argues that because an escape would have required him to pass through five secured doorways, his actions were so unlikely to achieve that result that the defense of "inherent impossibility" should apply.  The state argues that escape from the Washington County jail is not inherently impossible and that appellant's failure to ultimately escape is not a legal bar to his prosecution.  We agree with the state.

The state must prove all the elements of a crime beyond a reasonable doubt.  State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995) (stating that due process requires that the state prove each of the elements of the crime beyond a reasonable doubt).  When the charge is for attempt, rather than the completed act, the prosecution must prove specific intent and an act that is a substantial step toward the commission of a crime.  Minn. Stat. § 609.17, subd. 1 (2002); State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980).  The prosecution in this case proved both.

A.  Specific Intent

An attempt to commit any crime requires a specific intent to commit that particular offense.  Zupetz, 322 N.W.2d at 734.  Appellant argues that because there were at least five secured doorways between appellant and the outside world, there was minimal possibility of escaping.  He asserts that, therefore, under these circumstances, he lacked a reasonable expectation of escaping and there is thus reasonable doubt as to whether he had the specific intent to attempt an escape from custody.  We do not understand appellant's argument.  In effect, he is arguing that since escape was so difficult, he was entitled to "a free pass" to try, and that, if caught, he cannot be prosecuted "because he never had a great chance to escape anyway."

By creating a dummy in his bed, deliberately absenting himself from his cell during a lockdown, and by proceeding to hide in the shower, appellant displayed an intention to escape from jail through a premeditated plan.

B.  Substantial Step

A "substantial step" is generally defined as an overt act that is "more than preparation for" the intended crime.  Minn. Stat. § 609.17, subd. 1 (2002).  Appellant argues that his actions were such that an escape was inherently impossible because he did not take a substantial step towards committing the crime.  Appellant argues that because no weapons or other means of escaping were found on him, he was unprepared for an escape and thus failed to take a substantial step towards committing the crime.  He argues that his futile attempt to deceive correctional officers with a dummy and his lack of resistance when he was found in the shower room is evidence that he took no substantial step to escape. 

When appellant hid a body dummy in his bedclothes, failed to return to his cell during lockdown, and then hid in the shower room, he went beyond mere "preparation."  He now had begun to commit the crime of escape from custody.  Appellant took a substantial step towards the commission of the crime when he left his cell with the dummy in the bed and attempted to deceive the correctional officers by hiding in the shower room.  The record easily supports the finding of a substantial step.  The making of a dummy, placing it in the bed, and leaving the cell can only be explained as an intentional decision to deceive prison staff as to his whereabouts.  Appellant's actions were a substantial step towards escaping from custody. 

Appellant argues that the state failed to prove attempt beyond a reasonable doubt because it was impossible for him to escape from custody.  While Minnesota does not normally recognize the defenses of factual or legal impossibility, inherent impossibility is a recognized defense to a charge of attempt.  State v. Bird, 285 N.W.2d 481, 482 (Minn. 1979).  Minn. Stat. § 609.17, subd. 2 (2002), provides that

[a]n act may be an attempt notwithstanding the circumstances under which it was performed or the means employed to commit the crime intended or the act itself were such that the commission of the crime was not possible, unless such impossibility would have been clearly evident to a person of normal understanding.

(Alteration in original) (emphasis added).  The impossibility provision "is designed to exclude cases of such obvious impossibility that some other explanation than normal criminal design must account for the act."  Minn. Stat. Ann. § 609.17, advisory comm. cmt. (2003). 

For illustrative purposes, the advisory committee has stated that the defense of inherent impossibility would apply if a person used a popgun to sink a battleship.  See Minn. Stat. Ann. § 609.17, advisory comm. cmt. (2003).  Assume that an individual is sitting on the banks of an ocean and anchored two miles off shore and clearly visible is a huge battleship.  The defendant points a popgun or a water pistol, each with an effective range of about seven feet, pulls the trigger, and says, "Bang, you are sunk."  As much as the federal government and the Navy dislike attacks on battleships, if these are the only facts, even the FBI and the anti-terroristic folks will not be able to make a case of attempted criminal damage to a navy battleship.  If the person persists in so claiming that he was serious, mental-competence hearings and a civil commitment are in his future.  Courts are not going to allow the federal authorities with a straight face, on these facts, to charge the "shooter" with a serious federal felony.  That is the explanation behind the committee's "popgun analogy."  That is not close to our facts. 

Here, it is possible that appellant could have completed the escape by leaving the shower area, remaining undetected, and getting to the outside through some other means.  Difficult, yes, but, impossible, no.  All state penitentiaries and county jails customarily have more than one door that must be passed through to exit the facility.  Yet, year after year there are reported numerous attempted escapes and a handful of successful escapes.  Locked doors or not, it is possible to escape from a closely guarded facility; all attempted escapes are treated most seriously by corrections. 

Appellant was faced with escape conditions no more or less difficult than those any other inmate in a secure prison system would face.  The slim chance that appellant would succeed does not extinguish his chance of being fairly convicted.  In that he succeeded.  He was.

3.  Pro Se Arguments

In his pro se brief appellant argues that he did not receive a fair trial, he did not receive an adequate interpreter, and was unable to call certain witnesses or present certain evidence.  We have reviewed appellant's pro se brief, and it does not change our decision. 

Affirmed.