This opinion will be unpublished and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

C0-99-1405

 

 

State of Minnesota,
Respondent,

vs.

Jeffrey Allen Steenerson,
Appellant.

 

Filed July 11, 2000

Affirmed

Crippen, Judge

Dissenting, Amundson, Judge

 

Anoka County District Court

File No. K8989852

 

 

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

 

Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent)

 

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, Ten South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

 

CRIPPEN, Judge

Appellant Jeffrey Steenerson challenges his conviction and sentence for fourth-degree assault of a police officer, arguing that the trial court erred in denying his motion to dismiss for lack of probable cause.  Appellant argues that probable cause was lacking because the officer that appellant struck was enforcing a private rule, not performing a duty imposed by law as required by the statute.  Appellant also argues that the court abused its discretion when, in staying imposition of the sentence, it required a jail sentence four times the term recommended in the presentence investigation.  We affirm.

FACTS

On October 30, 1998, appellant was at Anoka’s Halloween block party, a large event to which several Anoka police officers had been assigned.  As part of the party, Serum’s Bar had erected a tent in the lot adjacent to its usual business place.  The officers’ duties at the party were to prevent disorderly conduct and to prevent violation of the city’s liquor laws, which prohibited the possession of any alcoholic drink on public streets and sidewalks.  Additionally, the officers assisted Serum’s employees in enforcing Serum’s tent policy to disallow possession of beverages not purchased at Serum’s.

On the night in question the tent contained more than 2,000 people when appellant walked into the tent carrying a cola-like beverage in a clear plastic glass.  Officer Scott Wendell observed appellant and followed him in order to advise him that it was against Serum’s policy to bring the beverage into the tent.  After appellant heard Wendell over the loud music, he returned to the entrance, placed his glass on the ground outside the tent, and returned to the tent.

Wendell again tried to get appellant’s attention over the loud music, and when he again did not respond, Wendell grabbed him by the belt loop and told him that it is illegal to carry alcohol on the street.  Appellant responded by shouting, “It was pop,” and puffed out his chest so that it bumped the officer.  Wendell then advised appellant that it would violate littering laws to leave the glass in the street.  Appellant then picked up the cup and threw it in the garbage while swearing and saying that the officer’s attitude was unnecessary.

As appellant again returned to the tent, Officer Wendell, believing that appellant was agitated, put out his hand in an attempt to again prevent appellant from entering the tent.  At that point, appellant grabbed Wendell’s arm and raised his right hand.  Wendell then blocked the appellant’s right arm with his left arm.  Appellant then grabbed the lapels of Wendell’s jacket, picked him up off of his feet and pushed him until Wendell tripped over a rope and landed with his head on a tent stake, causing the officer to momentarily lose consciousness.  When the officer regained consciousness, appellant was lying on top of him with his right hand cocked and his left hand around the officer’s throat.  Wendell struggled to get free and shortly thereafter the three other officers arrived and pulled appellant off Wendell.

In pre-trial omnibus proceedings, appellant moved to dismiss the assault charge for lack of probable cause to believe the officer was performing a duty imposed by law.  The trial court denied the motion, concluding that crowd control was a necessary police function at the Serum’s event.  The defendant was scheduled for trial.

After Wendell testified at trial, appellant agreed to submit the remainder of the testimony in the form of stipulated documents.  The parties agreed that, if found guilty, appellant would receive a stay of imposition of sentence and jail time would be capped at 60 days.  The trial court found appellant guilty, stayed imposition of sentence for two years and included 60 days of jail confinement as one condition of the stay.  The presentence investigation report had recommended 15 days but had noted that the court might wish to consider a longer sentence.  The court stated no reasons for not imposing the 15-day sentence.

DECISION

1.  Factual basis for conviction.

Although already tried and convicted of the charge stated in the case, appellant characterizes his appeal as from the omnibus court’s failure to dismiss for lack of probable cause.  As the evidentiary standard for a conviction is much higher than that for probable cause, any claim that the trial court erred in failing to dismiss for lack of probable cause is construed as a claim that the evidence was insufficient to convict.  State v. Holmberg, 527 N.W.2d 100, 103 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995).  To the extent the facts of the case are challenged as not supporting a conviction, this court reviews the record and legitimate inferences therefrom in the light most favorable to the conviction.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). 

Appellant challenges the trial court’s determination that Officer Wendell was executing his duty to prevent breaches of the peace and disorderly conduct.  A fourth-degree assault occurs when an assaulted officer “is effecting a lawful arrest or executing any other duty imposed by law.”  Minn. Stat § 609.2231, subd. 1 (1998). 

As appellant notes, Officer Wendell testified that his initial decision to stop appellant was to enforce Serum’s “no outside beverage” policy.  Appellant argues that this was not a duty imposed by law.  Although Wendell was clearly enforcing Serum’s policy as the exchange between the two parties began, Wendell was eventually compelled to act pursuant to his duties under the law.  At the time of the assault, Wendell was executing his duty to prevent a breach of the peace.  Appellant was highly agitated, and Wendell reasonably felt he posed a threat to breach the peace.

Appellant responds by arguing that the parties’ interactions all were part of one confrontation that began with Wendell enforcing Serum’s policy.  Furthermore, appellant contends that his “highly agitated state” was the result of Wendell’s decision to execute Serum’s policy and twice initiate physical contact with him.  But these are assertions of fact, not law, and the record does not compel a finding of fact that the police conduct constituted a continuous course of enforcement of Serum’s private policy.  There is sufficient evidence to support the assault conviction.

2.  Jail confinement.

Appellant challenges the trial court’s decision to impose a sentence greater than that proposed in the pre-sentence investigation (PSI) report, arguing that the sentencing court erred in departing from the PSI recommendation without citing any aggravating factors for departure.  But there is no support in the law for appellant’s argument.  A PSI does not bind a court like the sentencing guidelines.  See Hamilton v. State, 398 N.W.2d 680, 683 (Minn. App. 1987) (stating that a PSI does not compel a downward departure or prevent an upward departure under the sentencing guidelines), review denied (Minn. Mar. 13, 1987).  It is within the court’s discretion to require time served in the county jail as a condition of probation.  Minn. Stat. § 609.135, subd 4 (1998).

Appellant’s attribution of any weight to the PSI recommendation rests entirely on State v. Hennum, 441 N.W.2d 793 (Minn. 1989).  In Hennum, where a victim of domestic abuse eventually killed her husband, the trial court sentenced the victim to the minimum presumptive sentence despite the presence of significant mitigating factors.  The Hennum court held that, because it ignored significant mitigating factors, the trial court erred in not departing downward from the presumptive sentence under the guidelines, to the amount of time recommended in the PSI.  Id. at 800-01.  Hennum does not suggest that a PSI has any binding authority on a sentencing court.  Rather, having found compelling mitigating factors, the Hennum court merely found in the PSI recommendation an appropriate statement of a sentence that took these factors into account.

When examining the trial court’s exercise of discretion, it is significant that its sentence was not a departure from the PSI.  Although the pre-sentence investigation report recommended a 15-day jail sentence, it also suggested that the court might consider a greater jail penalty.  And the court’s sentence was specifically within the range of sentences contemplated by the parties when they agreed on a 60-day cap on jail time.  The court did not abuse its discretion by requiring a 60-day jail confinement.

Affirmed.

 


AMUNDSON, Judge (dissenting)

I respectfully dissent.  There can be no doubt that not every assault on a peace officer is chargeable as a fourth-degree assault in violation of Minn. Stat. § 609.2231.  The statute requires that the injured officer must be effecting a lawful arrest or performing a duty imposed by law for an offender to be guilty of fourth-degree assault.

At the omnibus hearing, appellant asserted that Officer Wendell was doing neither when he confronted appellant outside the tent.  Indeed, at trial, the officer himself testified that his purpose in confronting appellant was to enforce a policy, promulgated by Serum’s bar, that no beverages be brought into the tent it had set up. Officer Wendell stated that the beverage in appellant’s glass looked like cola, and that he initially stopped appellant to prevent him from bringing this beverage into the tent.  He also testified that the purpose of the officers’ actions was to assist the employees of Serum’s restaurant in enforcing the outside beverage ban.  Indeed, there is no law or ordinance precluding a person from carrying a beverage into a tent under these circumstances. Can the enforcement of a restaurant policy created solely for the purpose of enhancing revenue during a citywide celebration be deemed an official duty?  I think not.

Officer Wendell made the contact with appellant that started this mano a mano encounter solely for the purpose of assisting Serum’s employees in enforcing the restaurant’s rule.  The confrontation, which included physical contact, twice initiated by the officer, with appellant, advanced with appellant first telling the officer that he was overreacting, and then eventually assaulting him.

But because the contact initiated by Officer Wendell, ab initio, was outside the scope of his duties as a police officer, the injuries he sustained as the eventual result of that interaction cannot be deemed the product of fourth-degree assault.

Once the officer initiated the contact, the contact between appellant and Officer Wendell was one unbroken altercation.  Had appellant left the presence of the officer and later returned and assaulted him, the nature of the initial contact would be less meaningful.  Here, however, everything that happened between appellant and Officer Wendell extrapolated directly from the officer’s decision to enforce a restaurant policy while acting as a uniformed police officer.

When an off-duty police officer accepts private employment and is receiving compensation from that private employer to enforce the employer’s own profit-motivated rules, the officer is transfigured into a private citizen.  Representing the employer’s profit-making interests, the officer is no longer shielded by the statute that is designed for those advancing public safety.  Here, Officer Wendell was representing Serum’s profit-making interests. The omnibus court should have granted appellant’s motion for dismissal due to lack of probable cause.

I would reverse.