This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Frank (NMN) Runningshield,



Filed December 26, 2001


Kalitowski, Judge


Hennepin County District Court

File No. 00016257


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


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Huspeni, Judge. *

U N P U B L I S H E D   O P I N I O N


            Appellant Frank Runningshield argues the evidence was not sufficient to convict him of felony murder.  Appellant also argues the district court erred by (1) failing to strike the entire jury panel after hearing a questionable comment from the judge; (2) improperly admitting Spreigl evidence; and (3) refusing to instruct the jury on manslaughter.  We affirm.



Appellant argues the evidence was not sufficient as a matter of law to convict him of felony murder because his assault was not proved to be the proximate cause of the victim’s death.  We disagree.

When reviewing a claim of insufficient evidence, this court must view the evidence in the light most favorable to the state and assume the trier of fact believed the state’s witnesses and disbelieved any contradictory evidence.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).

To prove defendant guilty of the crimes charged, the state must prove the defendant’s acts were a “substantial causal factor” in causing the victim’s death.  State v. Sutherlin, 396 N.W.2d 238, 240 (Minn. 1986); State v. Smith, 264 Minn. 307, 318-22, 119 N.W.2d 838, 846-49 (1962).

[W]henever a blow is inflicted under circumstances to render the person inflicting it criminally responsible if death follows, he will be deemed guilty of the homicide though the person beaten would have died from other causes, or would not have died from this one had not others operated with it; provided the blow contributed either mediately or immediately to the death, in a degree sufficient for the law’s notice.  In other words, the blow or wound for which the defendant is responsible need not be the sole cause. * * * It (the wound) need not even be a concurrent cause; much less need it be the net proximate one; for if it is the cause of the cause, no more is required.


Smith, 119 N.W.2d at 848; 9A Minnesota Practice § 49.13 (3d ed. 2000).  Moreover, contributory negligence from the victim is never a defense to a criminal prosecution.  State v. Crace, 289 N.W.2d 54, 59 (Minn. 1979); State v. Munnell, 344 N.W.2d 883, 887-88 (Minn. App. 1984).

Here, there was evidence that appellant repeatedly kicked the victim in the head and left him in the snow without a coat.  The victim was found approximately one hour later and taken to the hospital where treatment for hypothermia caused his death.  As in State v. King, 367 N.W.2d 599 (Minn. App. 1985), the victim here could not seek medical treatment or shelter because he was unconscious.  Because appellant is responsible for an injury that put the victim in a position where he could not seek shelter, and ultimately led to his death, we conclude his acts were a “substantial causal factor” in causing the victim’s death.  In addition, appellant’s actions made it impossible to determine the effect of the victim’s blood-alcohol content.


Appellant argues the district court erred when it refused to strike an entire panel of potential jurors because they were tainted by the judge’s comment that Minnesota gives light sentences to convicted criminals and thus would be more likely to convict.  We disagree.

This court will not lightly substitute its own judgment for that of the district court, which is in the best position to evaluate the testimony and demeanor of potential jurors.  State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990).  To prevail on a claim of bias under Minnesota law, an appellant must show that (1) the juror alleged to be biased was subject to challenge for cause; (2) actual prejudice resulted from the district court’s failure to dismiss; and (3) an appropriate objection was subsequently made.  State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983).

Appellant argues that he should only have to establish implied, rather than actual, bias.  But this court has stated that although federal courts have employed the doctrine of implied bias in appropriate cases, Minn. R. Crim. P. 26.02 “does not appear to embody it,” State v. Anderson, 603 N.W.2d 354, 356-57 (Minn. App. 1999), review denied (Minn. Mar. 14, 2000), and without a clear indication from the Minnesota Supreme Court, we are reluctant to adopt a new doctrine that would have such a profound effect on current practice, id.  Thus we conclude appellant must show actual bias.

  Here, appellant made no showing of actual bias, but instead argued that exposure to the type of comment the judge made would have created bias.  This is not enough.  As we held in Anderson, in rejecting a defendant’s argument that the existence of intrinsic bias was so serious it required dismissal per se, there must be an actual showing, rather than a presumption, of bias.  603 N.W.2d at 357.  Because appellant failed to show actual bias, we conclude the district court did not err.


Appellant argues that the district court committed reversible error by admitting Spreigl evidence for the purpose of rebutting a witness’s testimony because it only showed his criminal history of assault.  We disagree.

A reviewing court will not reverse the district court’s admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  Whether the probative value of the evidence of a prior crime outweighs its prejudicial effect is a matter left to the discretion of the district court.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  Further, appellant must prove the district court erred by showing he was prejudiced by its admission.  State v. Hannuksela, 452 N.W.2d 668, 678 (Minn. 1990).

Spreigl evidence may be admitted for the limited purpose of showing motive, intent, absence of mistake or accident, identity, or a common scheme or plan.  Minn. R. Evid. 404(b) (2000); State v. DeWald, 464 N.W.2d 500, 502-03 (Minn. 1991).  Other-crimes evidence shall not be admitted in a criminal prosecution unless the evidence is relevant and material to the state’s case and the probative value of the evidence is not outweighed by its potential for unfair prejudice.  State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).

When determining admissibility, the district court should balance factors such as the relevance or probative value of the evidence, the need for the evidence, and the danger that the jury will use the evidence for an improper purpose, or that the evidence will create unfair prejudice pursuant to Minn. R. Evid. 403.  State v. Bolte, 530 N.W.2d 191, 196-97 (Minn. 1995).  See, e.g., State v. Frisinger, 484 N.W.2d 27, 32 (Minn. 1992).

Here, the state delineated its need to use the evidence prior to trial, arguing the evidence was probative to show intent to effect death by showing appellant’s knowledge of the effect of similar injuries.  The district court found the evidence to be necessary and probative on the element of intent.  Moreover, the court gave a limiting instruction to the jury to guard against improper use of the evidence.  On these facts we cannot conclude the district court abused its discretion.


Appellant argues the district court erred by refusing to give the jury a manslaughter instruction, arguing that the jury could have acquitted on felony murder and found appellant negligent.  We disagree.

 The determination of what, if any, lesser offense(s) to submit to the jury is within the sound discretion of the district court.  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986).  In a murder case, it is “pre-eminently the trial court’s duty in the exercise of its discretion to determine what lesser degrees of homicide to submit.”  State v. Malzac, 244 N.W.2d 258, 261 (Minn. 1976).

The general rule is that a district court must submit a lesser offense only if it is a lesser-included offense and only if there is evidence that produces a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser offense.  State v. Leinweber, 303 Minn. 414, 228 N.W.2d 120, 125-26 (1975).  The issue is “whether there was evidence sufficient to satisfy the rational basis test for submission of lesser-included offenses.”  State v. Edwards, 343 N.W.2d 269, 274 (Minn. 1984).

Here, appellant offered no evidence from which the jury could reasonably infer he acted negligently, other than his own assertions that it could have been an accident.  The court concluded that either appellant kicked the victim in the head, which is not culpable negligence, or he did not kick him, and therefore did nothing wrong.  Because appellant offered no evidence, other than a hypothetical not supported by the evidence, we conclude the district court did not abuse its discretion.


Appellant argues the district court erred by not granting a downward departure because appellant accepted responsibility, expressed remorse, and could not remember the offense because he was intoxicated.  We disagree.

Only in a rare case will a reviewing court reverse a district court’s imposition of the presumptive sentence, State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981), even if there are grounds that would justify departure.  State v. Brusven, 327 N.W.2d 591, 593 (Minn. 1982).  Further, district courts have no discretion to depart from the guidelines unless aggravating or mitigating factors are present.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  The sentences provided in the sentencing guidelines are presumed appropriate.  State v. Thao, 634 N.W.2d 245, 249 (Minn. App. 2001).  

Here, appellant’s intoxication is not an appropriate mitigating factor.  We conclude that this is not the “rare” case that warrants reversal of the district court’s imposition of the presumptive guidelines sentence.



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.