This opinion will be unpublished and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

C0-99-1713

 

 

State of Minnesota,

Respondent,

 

vs.

 

Shannon Sylvin Lokken,

Appellant.

 

 

Filed May 2, 2000

Affirmed in part and reversed in part

Schumacher, Judge

 

St. Louis County District Court

File No. K598300953

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Alan L. Mitchell, St. Louis County Attorney, Brian D. Simonson, Assistant County Attorney, 1810 12th Avenue East, 107D Courthouse, Hibbing, MN 55746 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Peterson, Judge.


U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Shannon Sylvin Lokken appeals his conviction and sentence for second-degree assault and his sentence for attempted first-degree criminal sexual conduct. Lokken argues that the second-degree assault was a lesser-included offense of the attempted first-degree criminal sexual conduct and that the trial court abused its discretion in sentencing him to an upward durational departure on the sexual offense. We affirm the conviction for second-degree assault and the sentence for attempted first-degree criminal sexual conduct, but vacate the sentence for second-degree assault.

FACTS

On August 26, 1998, Lokken and a friend, Adam Luecken, went to the home of Janet Schultz. Schultz and her boyfriend, Michael Anderson, were home at the time. Lokken asked to see Anderson's chainsaws. The men went to the greenhouse where the chainsaws were kept. Once inside, Lokken pulled out a pistol and threatened to kill Anderson. He instructed Luecken to bring Schultz back to the greenhouse. Luecken went to the house but did not return with Schultz. Lokken then instructed Luecken to hold a pitchfork on Anderson while he went to get Schultz.

Inside the house, Lokken grabbed Schultz in a headlock, pointed the pistol at her temple, and told her, "It's all over." Schultz grabbed the gun, wrestled it away from her head, and screamed for Anderson. Lokken and Luecken fled, and the police were called.

Pursuant to a plea agreement, Lokken pleaded guilty to two counts of second-degree assault, one count of attempted first-degree criminal sexual conduct, and one count of first-degree burglary. He was sentenced to 36 months for the second-degree assault on Anderson, to run consecutively to a 79-month sentence for the attempted criminal sexual conduct against Schultz. He was also sentenced to 36 months for the second-degree assault on Schultz and 58 months for the burglary, to be served concurrently with the sentence for attempted criminal sexual conduct. Lokken appeals.

D E C I S I O N

1. Lokken's 79-month sentence for attempted first-degree criminal sexual conduct is an upward departure from the presumptive guideline sentence of 43 months. The trial court departed because: (1) the crime occurred in Schultz's home; (2) the effect of the crime on the community was substantial; and (3) the crime could have been more serious if Schultz had not fought back.

An upward departure from a presumptive sentence may be imposed only if "substantial and compelling" aggravating circumstances are present. See State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). A decision to depart from the sentencing guidelines rests within the trial court's discretion and will not be reversed absent an abuse of discretion. Id. at 776. Lokken argues that the court's reasons for departing were improper and inadequate.

Lokken first argues that the court abused its discretion in using the "zone of privacy" factor to aggravate his attempted first-degree criminal sexual conduct sentence. He argues his violation of Schultz's zone of privacy was his unlawful entry into her home to commit a crime, for which he was punished by his conviction and sentence for first-degree burglary.

It is impermissible to use an element of a crime for which a defendant was sentenced as an aggravating factor in sentencing him on another conviction. State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996). First-degree burglary requires a nonconsensual entry into a building with intent to commit a crime, along with one of three additional factors: that the building is an occupied dwelling; the burglar possesses a dangerous weapon; or the burglar assaults a person within the building. Minn. Stat.  609.582, subd. 1 (1998). Since only one of these three factors is necessary to support a first-degree burglary conviction, and here all three were present, the remaining two factors were properly used as aggravating factors in the attempted first-degree criminal sexual conduct sentence. Cf. State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (affirming upward departure for first-degree assault where victim's injuries met all three alternative statutory elements of "great bodily harm"), review denied (Minn. Sept. 29, 1987).

A sentencing departure will be upheld, even if based on improper factors, if it can be supported based on other appropriate sentencing factors. See State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). Here, the assault took place in Schultz's home and thus invaded her zone of privacy. This is sufficient to support the upward departure. We therefore need not address the trial court's other reasons for departing.

2. Lokken argues that he can not be convicted of both second-degree assault in violation of Minn. Stat. 609.222, subd. 1 (1998), and attempted first-degree criminal sexual conduct in violation of Minn. Stat. 609.342, subd. 1(d) (1998), because second-degree assault is a lesser-included offense of attempted first-degree criminal sexual conduct.

A defendant may be convicted of either the crime charged or an included offense, but not both. Minn. Stat. 609.04, subd. 1 (1998). A lesser-included offense is defined as:

(1) A lesser degree of the same crime; or

(2) An attempt to commit the crime charged; or

(3) An attempt to commit a lesser degree of the same crime; or

(4) A crime necessarily proved if the crime charged were proved; or

(5) A petty misdemeanor necessarily proved if the misdemeanor charge were proved.

 

Minn. Stat. 609.04, subd. 1. Second-degree assault may be a lesser-included offense of attempted first-degree criminal sexual conduct only if it is necessarily proved when attempted first-degree criminal sexual conduct is proved. See Minn. Stat. 609.04, subd. 1(4).

In determining whether one offense necessarily is proved by the proof of another, "'the trial court must look at the statutory definitions rather than the facts in a particular case.'" State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997) (quoting State v. Gayles, 327 N.W.2d 1, 3 (Minn. 1982)). If, after comparing the elements of each offense, a person can commit the greater offense without committing the lesser offense, the lesser offense is not necessarily included within the greater offense, and the defendant can be convicted of both. State v. Coleman, 373 N.W.2d 777, 781 (Minn. 1985).

A person commits attempted first-degree criminal sexual conduct when he, "with intent to commit [first-degree criminal sexual conduct], does an act which is a substantial step toward * * * the commission of the crime." Minn. Stat. 609.17 (1998). Thus, the elements of attempted first-degree criminal sexual conduct are (1) intent to sexually penetrate the victim and (2) an act that is a substantial step towards the commission of the crime. See State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980) (elements of attempt are (1) an intent to commit a crime and (2) a substantial step taken toward the crime's commission); 10 Minnesota Practice CRIMJIG 5.02 (1999) (elements of attempt are (1) defendant intended to commit the crime and (2) defendant did an act that was a substantial step toward, and more than mere preparation for, the commission of the crime).

Second-degree assault is defined as assault "with a dangerous weapon." Minn. Stat. 609.222, subd. 1. Assault is defined as:

(1) An act done with intent to cause fear in another of immediate bodily harm or death; or

(2) The intentional infliction of or attempt to inflict bodily harm upon another.

 

Minn. Stat. 609.02, subd. 10 (1998). Second-degree assault also requires a dangerous weapon. Minn. Stat. 609.222, subd. 1. Thus, the elements of second-degree assault are (1) intent to cause fear of injury or intent to inflict injury and (2) a dangerous weapon.

Based on this comparison of the elements of each offense, second-degree assault is not necessarily proved by proving attempted first-degree criminal sexual conduct, because it requires proof that the defendant was armed with a dangerous weapon, while attempted first-degree criminal sexual conduct does not. Although Lokken did in fact use a weapon to attempt to commit the criminal sexual conduct, such a factual finding is irrelevant for purposes of determining whether second-degree assault is a lesser-included offense of attempted criminal sexual conduct. Coleman, 373 N.W.2d at 780-81 (in determining whether an offense is a lesser-included offense, court must look at the "statutory elements of the relevant offenses rather than at the facts of a particular case"). The trial court did not err in convicting Lokken of both second-degree assault and attempted first-degree criminal sexual conduct.

3. Appellant argues that even if he can be convicted of both second-degree assault and attempted first-degree criminal sexual conduct, the trial court erred in sentencing him on both counts. Where "a person's conduct constitutes more than one offense * * *, the person may be punished for only one of the offenses." Minn. Stat. 609.035, subd. 1 (1998). Whether incidents constitute more than one offense for sentencing purposes depends on the facts and circumstances of the particular case. State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996). The

factors to be considered in determining whether multiple offenses constitute a single behavioral act are time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.

 

State v. Gould, 562 N.W.2d 518, 521 (Minn. 1997) (citation omitted).

Applying the factors here, it is clear that Lokken committed one act upon Schultz. The conduct constituting assault was Lokken grabbing Schultz around the neck, pointing the gun at her, and threatening her life. This same conduct was the "substantial step" necessary for the completed crime of attempted criminal sexual conduct. The reason for the assault was to obtain the single criminal objective of criminal sexual conduct against Schultz. We therefore vacate the 36-month sentence for assault.

Affirmed in part and reversed in part.