This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-01-150

 

State of Minnesota,
Respondent,

vs.

Daniel NMN Adams,
Appellant.

 

 

Filed September 25, 2001

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 00012136

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Hanson, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

A jury found appellant Daniel Adams guilty of fifth-degree felony assault and terroristic threats stemming from a domestic violence incident with his estranged wife.  The district court’s nonconsecutive sentencing of appellant to 24 months in prison was a durational and dispositional departure from the presumptive sentence.  Appellant argues that the evidence is insufficient to support the convictions, that the district court abused its discretion in ordering a double durational departure, and that he was prejudiced by ineffective assistance of counsel.  Because the evidence supports the convictions, the district court did not abuse its discretion in sentencing, and appellant has not shown that he was prejudiced by ineffective assistance of counsel, we affirm.

D E C I S I O N

I.

Sufficiency of the evidence

            This court’s review of the sufficiency of the evidence is limited to a careful analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, sufficiently supports the verdict.  State v. Webb, 440 N.W.2d 425, 430 (Minn. 1989).  We will not disturb a verdict if the fact-finder, acting with due regard for the presumption of innocence and for the necessity of proof beyond a reasonable doubt, could reasonably have found the defendant’s guilt was proved.  State v. Davidson, 481 N.W.2d 51, 58 (Minn. 1992).

Assault in the fifth degree

Appellant argues that the evidence is insufficient as a matter of law to sustain the conviction of felony assault in the fifth degree.  A person commits an assault in the fifth degree if he or she “intentionally inflicts or attempts to inflict bodily harm upon another.”  Minn. Stat. § 609.224, subd. 1 (2) (2000). 

Appellant’s wife testified that appellant called her house asking to take their son to the store, but she told him that he had to wait until after she and the children had attended church.  A short time later, she testified that appellant: (1) arrived at the house asking for their son, but she blocked appellant from walking up the stairs; and (2) tried to push her out of the way and grabbed her neck.  She told him to stop touching her, and she testified that appellant responded, “I’ll do better than that, I’ll kill you.”  During the confrontation, she testified that their 14-year-old daughter held onto her and that appellant reached over the child and struck his wife in the mouth with an open hand.  According to her testimony, the appellant then kicked out the windows in her bedroom, the living room, and the dining room, and her van. A police officer testified that when he arrived at the scene, the appellant’s wife’s neck was red and swollen and her lip was bleeding.  This testimony supports a conviction of felony assault in the fifth degree.

Terroristic threats

            Appellant argues also that the evidence is insufficient as a matter of law to support a conviction of terroristic threats.  A person commits terroristic threats if he or she “threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another.”  Minn. Stat. § 609.713, subd. 1 (2000).  Appellant’s wife testified that when she told him not to touch her, he responded, “I’ll do better than that, I’ll kill you.”  Their two daughters testified that they heard their mother say, “Don’t hit me,” and then heard appellant say, “If I hit you, I’m going to kill you.” 

            Appellant argues that inconsistent witnesses’ statements were not credible testimony.  This court must assume that the fact-finder believed the state’s witnesses and disbelieved any contrary evidence.  State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994); State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  In finding appellant guilty of terroristic threats, the jury believed the testimony of the victim and her daughters.  The testimony supports a finding that appellant committed the act of making terroristic threats.

Sentencing

Appellant argues that the district court abused its discretion in ordering an upward durational departure from the presumptive sentence of one year and one day, stayed.  Departures from presumptive sentences are reviewed under an abuse-of-discretion standard, but there must be “substantial and compelling circumstances” in the record to justify a departure.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  If the record supports the district court’s findings that substantial and compelling circumstances exist, this court will not modify the departure “unless it has a ‘strong feeling’ that the sentence is disproportional to the offense.”  State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984).  The district court stated that the upward durational departure was supported by two aggravating factors: the presence of children and invasion of the victim’s zone of privacy.

The presence of children may render the victim of the crime more vulnerable, State v. Erickson, 313 N.W.2d 16, 18 (Minn. 1981), or may make the offense a particularly outrageous act, State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982) (stating defendant knew children would be present); see Minn. Sent. Guidelines II.D.2.b(1), (2).  Appellant’s 14-year-old daughter was holding onto her mother while appellant hit her mother.  The child was at risk because she could have been hit accidentally, and the mother was more vulnerable as a result of the presence of her daughter.  Appellant’s two teenage daughters also heard appellant threaten to kill their mother.  In witnessing the abuse, the children are also psychological victims.  Cf.  State v. Morrison, 437 N.W.2d 422, 429 (Minn. App. 1989) (noting possible psychological harm to child from having to witness abuse against sister); State v. Olson, 436 N.W.2d 817, 821 (Minn. App. 1989) (upholding upward departure when defendant abused victim in front of her older sister, who had suffered severe psychological trauma as a result). 

Invasion of the zone of privacy, such as being victimized in one’s own home, is also an aggravating factor supporting an upward departure in sentencing.  State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991).  Appellant argues that when the defendant is “not a stranger to the household,” there is no violation of a zone of privacy.  In Coley, the attacker violated his ex-wife’s zone of privacy even though the attack occurred in what had been their marital home for 20 years.  Id. at 556.  This court held, “The victim is entitled to the same security as are persons not divorced.”  Id. 

On the day of the incident, appellant was neither invited nor welcomed into the home.  Cf. State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988) (finding no invasion of privacy where victim invited defendants into his home although it was an exploitation of trust, another aggravating factor).  Although the couple still owned the home together, they were separated.  Appellant had filed for dissolution of their marriage a few days before the incident.  The victim had a right to privacy in her residence.  The record supports the district court’s decision to durationally depart from the presumptive sentence.

Ineffective assistance of counsel

Appellant argues in his pro se brief that he was prejudiced by ineffective assistance of counsel.  To establish a claim of ineffective assistance of counsel, the appellant must affirmatively show two elements: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.  Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  Appellant has failed to show any additional evidence that would have been presented at his trial.  He testified at his trial and presented to the jury his version of the events.  Appellant has not shown that he was prejudiced by ineffective assistance of counsel.

Affirmed.