This opinion will be unpublished and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 APPEAL
C7-01-110

 

State of Minnesota,
Respondent,

vs.

True Thao,
Appellant.

 

Filed January 2, 2002

Affirmed

Peterson, Judge

 

Ramsey County District Court
File No. K6001444

 

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

 

Susan Gaertner, Ramsey County Attorney, Philip Carruthers, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

John Stuart, State Public Defender, Scott G. Swanson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414  (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of attempted first-degree murder, appellant True Thao argues that criminal liability for attempt, which requires specific intent, cannot be applied to this felony-murder offense because felony murder, by definition, is an unintentional homicide.  We affirm.

FACTS

            Appellant True Thao was a member of a gang, the Oriental Ruthless Boys (ORBs).  The victim was a member of a rival gang, the Cobras.  During the past few years, the Cobras and the ORBs have committed many violent acts against each other.  The victim testified that the two gangs fought at sporting events and whenever they met on the street.  Thao and the victim had known each other for about six or seven years and had had numerous fights and run-ins with each other.

            At about noon on April 1, 2000, the victim left his home to do some errands.  On his way home, he noticed a gray-blue, two-door Honda hatchback with tinted windows and dealer license plates ahead of his car on Maryland Avenue.  The victim, who did not recognize the Honda, pulled up alongside it on the left, intending to pass.  Due to traffic, the victim was unable to pass, so he pulled in behind the Honda.  Both the Honda and the victim turned right onto Payne Avenue.

            On Payne Avenue, the Honda slowed down and swerved quickly toward the right, forcing the victim to also slow down.  The victim’s car ended up alongside the Honda.  The victim recognized the Honda’s driver as Thao and saw that Thao was pointing a gun at him.  The victim testified that Thao was holding the gun with both hands.  The victim demonstrated how Thao held the gun’s handle in one hand and had his other hand beneath the hand holding the gun.  The victim described the manner in which Thao held the gun as the kind of grip people use at a target range.  The victim ducked.  Thao fired one shot that hit the victim in the left arm.  The victim estimated that his car and the Honda were 18 to 24 inches apart when the shooting happened.  The victim testified that he got a clear look at the driver and was absolutely certain that the driver was Thao.

            The victim fled from the scene in his car.  He drove home and called 911.  The victim identified Thao as the shooter to police who responded to the call. 

Thao was charged with one count each of attempted first-degree felony murder in violation of Minn. Stat. §§ 609.185(3), 609.17, subd. 1 (1998); attempted first-degree felony murder for the benefit of a gang in violation of Minn. Stat. §§ 609.185(3), 609.229, subd. 2, 609.17, subd. 1 (1998); drive-by shooting in violation of Minn. Stat. § 609.66, subd. 1e(b); drive-by shooting for the benefit of a gang in violation of Minn. Stat. §§ 609.66, subd. 1e(b), 609.229, subd. 2 (1998);  second-degree assault with a dangerous weapon in violation of Minn. Stat. § 609.222, subd. 1 (1998); second-degree assault with a dangerous weapon for the benefit of a gang in violation of Minn. Stat. §§ 609.222, subd. 1, 609.229, subd. 2; and possession of a firearm by an ineligible person in violation of 624.713, subd. 1(a).

            The case was tried to a jury.  At trial, Thao denied any involvement in the shooting and presented alibi witnesses who testified that they had seen Thao at a barbecue in a park close to the time of the shooting.  Thao previously had given conflicting statements to police.  Initially, he denied any involvement in the shooting, but two days after the shooting, he admitted to a police investigator that he shot the victim.  A week or two later, Thao told the investigator that he had lied and that he had not committed the shooting.

The jury found Thao guilty as charged. The district court sentenced Thao to an executed term of 186 months in prison on the attempted first-degree murder conviction and did not sentence Thao on the remaining counts. 

D E C I S I O N

Under Minn. Stat. § 609.17, subd. 1 (1998):

Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime * * *.

 

“Specific intent that would give rise to an attempt to commit a certain crime is the intent to commit that particular crime.”  State v. Zupetz, 322 N.W.2d 730, 735 (Minn. 1982).

The traditional felony-murder doctrine allows

one whose conduct brought about an unintended death in the commission or attempted commission of a felony to be found guilty of murder by imputing malice where there was no specific intent to kill.

 

State v. Branson, 487 N.W.2d 880, 881 (Minn. 1992) (citation and quotation omitted).

            Thao argues that because of the basic inconsistency between the nature of an attempt, which requires specific intent to commit the underlying crime, and the doctrine of felony murder, which imposes liability for murder where there was no specific intent to kill, a person cannot logically commit the crime of attempted felony murder.  Therefore, Thao contends, his attempted-felony-murder conviction must be vacated.  We disagree.

            Although Thao’s argument might have some merit if the offense for which he was sentenced was a traditional felony murder, it has no merit when applied to the offense for which Thao was sentenced.  In a traditional felony murder, a person who has no intent to kill nevertheless causes an unintended death while committing or attempting to commit a felony.  In that case, an attempted felony murder appears illogical because it requires that a person intended to commit an offense that was not intended.

But this apparent inconsistency does not arise in Thao’s case because, unlike a traditional felony murder, intent to kill is an element of the offense for which Thao was sentenced.  Minn. Stat. § 609.185(3) states:

Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life: 

* * *

(3) causes the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit * * * a drive-by shooting * * * [.]

 

            Under the plain language of the statute, the offense requires that the underlying offense be committed “with intent to effect the death of the person.”  This is not a traditional felony murder offense in which an unintended death is brought about by a person committing a felony where there was no intent to kill.

There was evidence that Thao held a gun in a combat-style grip and aimed it at the victim when their vehicles were within two feet of each other.  This evidence was sufficient to prove that Thao intended to effect the death of the victim while committing or attempting to commit a drive-by shooting.  See State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983) (holding that evidence of intent to kill was sufficient when defendant fired a single bullet from a “pen gun” at a police officer 12 feet away, even though the officer was struck only by “particles from the discharge”); State v. Chuon, 596 N.W.2d 267, 270-71 (Minn. App. 1999) (upholding conviction for attempted first-degree murder when defendant, from inside of a car, fired a single shot at the victim, striking him in the shoulder blade, from a distance of about six to eight feet), review denied (Minn. Aug. 25, 1999).

Affirmed.