This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Shawn Patrick Padden,
Filed January 25, 2000
Affirmed as modified
Dissenting, Harten, Judge
Clay County District Court
File No. K0981018
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Lisa N. Borgen, Clay County Attorney, Clay County Courthouse, P.O. Box 280, Moorhead, MN 56561 (for respondent)
John M. Stuart, State Public Defender, Bruce L. McLellan, Special Assistant State Public Defender, 10 Second Street Northeast, Suite 114, Minneapolis, MN 55413 (for appellant)
Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Following his convictions for second-degree manslaughter and third-degree murder, appellant Shawn Patrick Padden argues the district court erred in (1) instructing the jury on third-degree murder where his acts were directed at one person; (2) sentencing him on both third-degree murder and second-degree manslaughter; and (3) sentencing him to an upward durational departure. We affirm as modified.
Appellant was charged and convicted of third-degree murder and second-degree manslaughter in the death of 18-year-old G.M. On January 4, 1998, the victim was asleep when his mother left for work just before midnight. When she arrived home the next morning, she found her son hanging by a rope noose from his closet door with his hands tied behind his back. A tipped-over chair was found a few feet from his body. Evidence was presented at trial indicating G.M. could not have tipped over the chair himself and that he died sometime between midnight and 2:00 a.m.
Appellant lived a few blocks from the victim’s home. He purchased alcohol for the victim and other high school students and allowed them to drink and smoke marijuana at his apartment. Appellant initially admitted seeing the victim at about 12:30 a.m. on the night he died but later denied this. Evidence was introduced at trial indicating: (1) appellant was seen walking outside at about 2:00 a.m. on the night G.M. died; (2) cigarette butts and a cigarette package of the brand smoked by appellant were found in the victim’s room; (3) the cigarette butts were circumstantially proven to be from the night the victim died; and (4) a bowling pin belonging to the victim was seen in appellant’s apartment but was not recovered.
In addition to the circumstantial evidence linking appellant to the crime scene, the state presented substantial evidence concerning appellant’s fascination with hangings: (1) a photograph printed from the internet depicting a hanging victim was found in appellant’s apartment; (2) evidence was introduced that appellant showed the hanging picture to several persons and commented that he enjoyed the picture; (3) appellant had a small toy hanging from a noose in his apartment; (4) appellant had stated he would like to see a real hanging and kept a noose in his apartment closet; (5) appellant had stated he wanted to see someone hang in real life and that if he killed someone, he would hang them; and (6) appellant had stated prior to G.M.’s death that he had once killed someone by hitting him over the head and then hanging him.
In addition, appellant had admitted to participating in hangings with the victim prior to the victim’s death. Appellant explained that he or the victim would stand on a chair with a rolled-up sheet around his neck and shut the sheet in the door. The "hangman" would remove the chair and then release the person hanging by opening the door. Appellant admitted participating in such a hanging with the victim in November or December of 1997. Appellant also told police that the victim wanted to do a hanging on December 31, 1997, but appellant refused. In addition to these incidents, evidence was presented that appellant had tied his former girlfriend’s hands using a knot similar to that used on the victim’s hands.
D E C I S I O N
Whether appellant’s acts could constitute third-degree murder is an issue of statutory interpretation. The proper construction of a statute is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). A person is guilty of murder in the third degree if the person
without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.
Minn. Stat. § 609.195(a) (1998). In a third-degree murder case, the state must prove (1) that defendant’s acts caused the death of another; (2) that the death was caused by perpetrating an act eminently dangerous to others; (3) that the act evinces a depraved mind; and (4) the jurisdictional element. State v. Mytych, 292 Minn. 248, 257, 194 N.W.2d 276, 282 (1972). While third-degree murder must be committed without the intent to effect death, the state need not affirmatively prove lack of such intent. Id.
The jury instructions for third-degree murder parallel these requirements. 10 Minnesota Practice, CRIMJIG 11.18 (1990). The instructions provide that the state must prove:
[D]efendant’s intentional act which caused the death of [the victim] was eminently dangerous to human beings and was performed without regard for human life. Such an act may not be specifically intended to cause death, and may be without specific design on the particular person whose death occurred, but it is committed in a reckless or wanton manner with the knowledge that someone may be killed and with a heedless disregard of that happening.
Id. (emphasis added).
Appellant argues that the submission of third-degree murder to the jury was error because his acts were specifically directed at G.M. and therefore were not within the third-degree murder statute. We disagree. Under the plain language of the statute the state has met the requirements of third-degree murder. First, appellant’s act was "dangerous to others" even if only appellant and the victim were present. See Mytych, 292 Minn. at 257, 194 N.W.2d at 282 (stating that there was "no question" that the defendant perpetrated an act dangerous to others where the defendant fired a gun at her ex-boyfriend and his wife, the only persons present). In a third-degree murder case, the act need not threaten more than one person, it must only be committed without special regard to its effect on any particular person or persons. State v. Reilly, 269 N.W.2d 343, 349 (Minn. 1978). The fact that the statutory language "dangerous to others" is plural does not mean multiple persons had to be present. In construing statutes, the singular includes the plural and the plural includes the singular. Minn. Stat. § 645.08(2) (1998).
Second, appellant possessed a depraved mind in acting out this fascination with hanging and he did so with reckless disregard for its dangerousness. Although only the victim and appellant were present when the victim was hanged, evidence was introduced indicating appellant’s depravity was not particularly directed at the victim. No evidence was introduced indicating appellant had any animus for the victim nor was there evidence that appellant intended to kill G.M. The evidence instead indicates that appellant was fascinated with hanging and had expressed a desire to see someone die by hanging.
Notwithstanding the plain language of the statute, appellant contends the district court erred in instructing the jury on third-degree murder. In support, appellant relies on two cases upholding a trial court’s refusal to give a third-degree-murder instruction. See State v. Stewart, 276 N.W.2d 51, 54 (Minn. 1979) (holding that an instruction on third-degree murder was not required where there was "no rational basis" to conclude that defendant’s acts were dangerous to others); Reilly, 269 N.W.2d at 349-50 (holding that an instruction on third-degree murder was not required where assault was intentional and directed particularly at the victim). But the quoted language in these cases is not applicable here. Unlike the facts here and in Mytych, both Stewart and Reilly involve defendants requesting instructions on third-degree murder as a lesser-included offense where the state presented evidence affirmatively proving intent. When the issue in a case is whether a defendant is entitled to an instruction on a lesser-included offense, the court’s inquiry is whether the jury could reasonably find the defendant not guilty of the greater charge, but still find the defendant guilty of the lesser charge. See, e.g., State v. Wahlberg, 296 N.W.2d 408, 417 (Minn. 1980) (holding that instruction on third-degree murder was not required because there was "ample evidence" that the killing was intentional and third-degree murder is unintentional).
Moreover, in Stewart and Reilly, the court determined that the defendant’s actions were directed at the victim in such a way that the jury could not conclude that the acts were depraved but not intentional. Stewart, 276 N.W.2d at 54; Reilly, 269 N.W.2d at 349. Here, there was not "ample evidence" that the act was intentional, thus preventing a third-degree murder instruction. The state introduced no evidence establishing an intentional crime such as first-degree or second-degree murder.
The district court correctly noted that here, as in Mytych, we are presented with an atypical case. Both Mytych and this case present the circumstance in which third-degree murder is not a lesser-included offense but rather is the most serious conviction. 292 Minn. at 251, 194 N.W.2d at 278-79. Also, here, as in Mytych, a third-degree murder charge was permitted where the only persons present at the time of the incident were harmed by the defendant’s actions. Id. at 257, 194 N.W.2d at 283. Finally, the Mytych court concluded that "the trial court was justified in finding that defendant was guilty of something more serious than culpable negligence." Id. at 259, 194 N.W.2d at 283. We reach the same conclusion here.
Finally, appellant argues that the district court erred by considering prior offenses in determining there was evidence that appellant possessed a "depraved mind." We disagree. Prior offenses may appropriately be considered in determining a person’s state of mind. See Minn. R. Evid. 404(b).
Appellant contends that the district court erred when it sentenced appellant for both third-degree murder and second-degree manslaughter. If a defendant is convicted of more than one charge for the same act, the court can only formally adjudicate and sentence on one count. State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984). But here, the court imposed the provisional sentence for the manslaughter conviction at appellant’s express request and with the understanding that it would be vacated should the third-degree-murder conviction be sustained on appeal. Because we affirm the third-degree-murder conviction, we vacate appellant’s conviction and provisional sentence for second-degree manslaughter.
Appellant argues that the district court erred when it imposed a double upward departure. We disagree. Generally, in determining whether to depart in sentencing, a district court must decide "whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). The district court is accorded broad discretion and this court will not interfere absent a "strong feeling that the sanction imposed exceeds or is less than that ‘proportional to the severity of the offense of conviction and the extent of the offender’s criminal history.’" State v. Schroeder, 401 N.W.2d 671, 674 (Minn. App. 1987) (quotation omitted), review denied (Minn. Apr. 23, 1987).
The district court departed from the presumptive sentence of 150 months and sentenced appellant to 300 months for his conviction for third-degree murder. Although the district court cited several grounds for the departure, we conclude that the district court did not abuse its discretion in departing based on the victim’s particular vulnerability and the emotional trauma to the victim’s family. See State v. Kobow, 466 N.W.2d 747, 753 (Minn. App. 1991) (holding that victim’s particular vulnerability alone was sufficient to support the upward departure), review denied (Minn. Apr. 18, 1991).
A victim may be particularly vulnerable due to age differences or abuse of a position of trust. State v. Harwell, 515 N.W.2d 105, 110 (Minn. App. 1994) (holding 14 year old was particularly vulnerable due to her young age), review denied (Minn. June 15, 1994); Schroeder, 401 N.W.2d at 675 (holding victim was particularly vulnerable because she trusted defendant, having known him for six years). Particular vulnerability may be used as a basis for departure in crimes that do not require intent to harm. State v. Bicek, 429 N.W.2d 289, 292 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988).
Appellant was several years older than the victim. He illegally provided alcohol for the victim and other young people, encouraged them to hang out at his apartment, allowed them to use his apartment to smoke marijuana, and encouraged the victim to drive him places. The record supports the conclusion that the age difference and the nature of the relationship allowed appellant to exert inappropriate influence over the victim. Moreover, at the time of his death the victim was also physically vulnerable because his hands were tied behind his back. See State v. Dalsen, 444 N.W.2d 582, 583-84 (Minn. App. 1989) (holding sexual-assault victim was particularly vulnerable because her hands were tied behind her), review denied (Minn. Oct. 13, 1989).
The district court also did not abuse its discretion in basing the departure on the particular and unique emotional trauma to the victim’s family members. See State v. Garcia, 374 N.W.2d 477, 480 (Minn. App. 1989) (holding departure was supported in part by trauma inflicted on the victim’s family), review denied (Minn. Nov. 1, 1985). Here, appellant left G.M.’s home with G.M. hanging in his bedroom. Instead of reporting G.M.’s death, appellant left the victim hanging by his closet door to be found by his mother the next morning.
In conclusion, we affirm appellant’s conviction and sentence for third-degree murder and vacate the conviction and provisional sentence for second-degree manslaughter.
Affirmed as modified.
HARTEN, Judge (dissenting)
Because I would reverse on the issue of instructing the jury on third-degree murder, I respectfully dissent.
Minn. Stat. § 609.195 (1998) provides that:
Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree * * *.
(Emphasis added.) The court relies on State v. Mytych, 292 Minn. 248, 194 N.W.2d 276 (1972), for its holding that appellant’s intent to effect the death of this particular victim does not preclude a conviction of third-degree murder. But Mytych does not address the "without intent to effect the death of any person" criterion; its only reference to that criterion is to note that "affirmative proof of the lack of such intent is not necessary." Id. at 257, 194 N.W.2d at 282.
Holding that the state need not provide affirmative proof of the lack of intent to effect death, however, does not and cannot obliterate the statutory requirement that the act causing death must be perpetrated "without intent to effect the death of any person." See In re Estate of Ablan, 591 N.W.2d 725, 727 (Minn. App. 1999) (in construing a statute, this court considers the statute as a whole and gives effect to all of its provisions); see also Shakopee Mdewakanton Sioux (Dakota) Community v. Minnesota Campaign Finance & Public Disclosure Bd., 586 N.W.2d 406, 412 (Minn. App. 1998) (this court can neither make inferences from language omitted from a statute nor supply statutory language).
Moreover, later cases interpreting Minn. Stat. § 609.195, demonstrate both the force of the statutory "without intent to effect the death of any person" and the limitations of Mytych. See e.g., State v. Wahlberg, 296 N.W.2d 408 (Minn. 1980) and State v. Reilly, 269 N.W.2d 343 (Minn. 1978).
Wahlberg found no error in a district court’s refusal to instruct a jury on third-degree murder "where the act was intentional and directed toward one person." Wahlberg, 296 N.W.2d at 411.
This statute [Minn. Stat. § 609.195 (1978)] was intended to cover cases where the reckless or wanton acts of the accused were committed without special regard to their effect on any particular person or persons; the act must be committed without a special design upon the particular person or persons with whose murder the accused is charged.
* * * *
[In this case,] there was ample evidence to support a finding of an intentional killing, whereas third-degree murder is an unintentional killing.
Id. at 417-18. As in Wahlberg, the circumstantial evidence surrounding the killing here supplies ample evidence of intentional homicide and shows that appellant’s act was committed with a special design upon his victim, not "without intent to effect the death of any person."
In Reilly, the supreme court again upheld the refusal to instruct on third-degree murder.
The "eminently dangerous act" here was defendant’s sexual assault of the victim, which requires specific intent and is directed particularly at the victim. In the words of [State v.] Lowe, [66 Minn. 296, 298, 68 N.W. 1094, 1095 (1896)] defendant’s act was not one "committed without special design upon the particular person * * * with whose murder the accused is charged."
Reilly, 269 N.W.2d at 349. Here, the hanging, like a sexual assault, required specific intent and was directed particularly at the victim. See also State v. Stewart, 276 N.W.2d 51, 54 (Minn. 1979) (upholding the refusal to instruct on third-degree murder because the accused in a death by shooting had fired only at the victim and his act was not eminently dangerous to more than one person).
The court attempts to distinguish Stewart and Reilly on two grounds: first, that those cases involved "defendants requesting instructions on third-degree murder as a lesser-included offense," and second, that "[defendants’] actions were directed at the victim in such a way that the jury could not conclude that the acts were depraved but not intentional." The first ground strikes me as a distinction without a difference. The statutory elements of third-degree murder must be proved to obtain any conviction on that charge, whether the defendant is also charged with first-degree and second-degree murder, with first-degree and second-degree manslaughter, or with all or some of them, or with nothing else. If one element (here, lack of intent to effect death) is missing, the jury cannot be instructed on the charge. See Wahlberg, Reilly, and Stewart; see also State v. Leinweber, 303 Minn. 414, 416, 228 N.W.2d 120, 123 (1975) (reversing a third-degree murder conviction and remanding because the jury should have been instructed on first-degree manslaughter and on second-degree murder, third-degree murder and second-degree manslaughter). The elements of third-degree murder do not change either to accommodate or to obstruct the application of that charge in given circumstances. As to the court’s second distinction, appellant’s hanging was no less directed at his victim than the sexual assault in Reilly and the shooting in Stewart.
Because appellant’s act did not meet the statutory criterion of being perpetrated "without intent to effect the death of any person," and Wahlberg and Reilly both indicate that a third-degree murder instruction is inappropriate unless that element is met, the third-degree murder conviction must be reversed. The only issue in Mytych was whether the depravity requisite to third-degree murder could be inferred from the accused's acts or whether she was guilty of no more than culpable negligence; the supreme court concluded that "her acts evinced a depraved mind in the sense in which that term is used in the statute defining murder in the third-degree." Id. at 259, 194 N.W.2d at 283. Mytych therefore addresses an issue different from that addressed here and is not dispositive of the instant case.