This opinion will be unpublished and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

C9-01-853

 

State of Minnesota,
Respondent,

vs.

Daniel Adams,
Appellant.

 

Filed February 12, 2002

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 00056162

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and

 

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

 

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

 

            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, 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 second-degree intentional murder and the sentence imposed for the offense, appellant Daniel Adams argues that the evidence was insufficient to prove that he intended to cause death and that the sentencing departure was not supported by aggravating circumstances.  We affirm.

FACTS

            At the time of trial, Adams and the victim had known each other for 19 years and had been married to each other for 14 years.  They have seven children.  The victim and Adams separated in November 1999, and Adams moved into a separate residence about a block away from the victim’s residence.  All of the children were living with the victim at the time of trial.

            On June 11, 2000, Adams was at the victim’s house with the victim’s permission because the victim had plans to go out of town, and Adams was going to check on the children while she was gone.  17-year-old E.S., a friend to one of the children, was braiding the victim’s hair.  The younger children were playing outside, and the older children were not at home.  The telephone rang, and Adams answered it.  The caller was a male friend of the victim.  The victim took the phone away from Adams, told the caller she would talk to him later, and hung up the phone.

            The victim asked Adams to leave.  The victim testified that as they walked toward the front door, Adams became enraged and grabbed her around the neck.  Adams pulled her into the bedroom, threw her onto the bed, and began punching her in the face.  Adams then grabbed her around her neck with both of his hands.  The victim told Adams to stop and that she could not breathe.  The victim testified that Adams’s grip got tighter and tighter, that she could no longer speak, and that she thought she “was going to die.”  The victim blacked out.  She recalled that when she came to, one of her sons was shaking her and saying that she was not breathing.  When she tried to reassure her son that she was okay, she was unable to speak.

            E.S. testified that Adams grabbed the victim around the neck and began hitting her in the face.  According to E.S., the victim got away and ran into a bedroom.  In the bedroom, E.S. saw Adams punching and choking the victim while she lay on the bed.  E.S. was about to pick up the phone, but Adams raised his hand up towards her.  E.S. ran out of the house and went to a nearby building where she used a phone to call police.  E.S. estimated that she returned to the victim’s house about two minutes later.  She went inside with the victim’s 11-year-old son.  They found the victim lying on the floor, moaning, with her head shaking back and forth and her eyes rolled back in her head.  When E.S. talked to the victim, the victim responded with gibberish and moaning.

            After assaulting the victim, Adams went to the University of Minnesota Police Department where he said to Officer Bryan Herr, “Arrest me.”  Herr asked why, and Adams stated, “I just killed my wife.”  Herr asked how, and Adams said, “With my hands.  I choked her out.”  Lieutenant Bernard Martinson heard Adams’s statements to Herr.  Martinson testified that he heard Adams say, “I killed her with my own hands.”  Martinson described Adams as very shaken, upset, and almost crying.

            Adams was charged with one count each of attempted intentional second-degree murder in violation of Minn. Stat. §§ 609.19, subd. 1(1), 609.17 (1998); first-degree assault in violation of Minn. Stat. §§ 609.221, subd. 1 (1998); and attempted unintentional second-degree murder in violation of Minn. Stat. §§ 609.19, subd. 2(2), 609.17 (1998).  The district court dismissed the attempted unintentional second-degree murder charge, and the remaining charges were tried to the court. 

            Adams testified on his own behalf at trial.  He admitted punching the victim in the face and choking her for two to three minutes.  Adams admitted that he understood that choking a person for two to three minutes could stop a person’s breathing but denied that he tried to stop the victim from breathing.  Adams testified that he left the victim lying on the bed and did not check to determine whether she had a pulse or was breathing.  Adams testified that he was angry and upset with the victim but did not wish or intend to kill her.  Adams denied telling police that he had killed his wife.

            The court found Adams guilty of attempted intentional second-degree murder and not guilty of first-degree assault.  The district court explained its finding that Adams acted with intent to kill the victim as follows:

            I find that [Adams] believed that his act of choking [the victim] with such strength that she lost consciousness, choking her for the two or three minutes, that he testified he did, that he believed that his acts would have that result, that is of killing [the victim].

 

            The state moved for an upward durational sentencing departure, and the court sentenced Adams to an executed 240-months prison term, a 77-month upward departure from the presumptive 163-month guidelines sentence. 

D E C I SI O N

1.         This court applies the same standard of review when reviewing a case tried to the court as when reviewing a jury verdict.  State v. Totimeh, 433 N.W.2d 921, 924 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).  In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

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).  We will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Circumstantial evidence is entitled to as much weight as direct evidence.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  For a defendant to be convicted based on circumstantial evidence alone, however, the circumstances proved must be consistent with the hypothesis that the defendant is guilty and inconsistent with any rational hypothesis other than guilt.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Even with this strict standard, the fact-finder is in the best position to weigh the credibility of evidence and thus determines which witnesses to believe and how much weight to give to their testimony.  State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985).

A defendant who “causes the death of a human being with intent to effect the death of that person or another, but without premeditation” is guilty of second-degree intentional murder.  Minn. Stat. § 609.19, subd. 1(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 * * *.

 

Minn. Stat. § 609.17, subd. 1 (1998).  “An essential element of the crime of attempted second degree murder is that appellant acted with intent to kill.”  State v. Alladin, 408 N.W.2d 642, 648 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987).

Intent means that the actor “either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(4) (1998).

Intent * * * is a permissible inference from all the facts and circumstances and is a [fact] question.  The task of inference is for the [fact-finder].  Where there is a question of whether the defendant intended to kill or only injure, any conclusion must be drawn from the totality of circumstances.  This includes the defendant’s conduct and defendant’s statements made at the time of the act.

 

Alladin, 408 N.W.2d at 648.  The fact-finder

may infer that a person intends the natural and probable consequences of his actions and a defendant’s statements as to his intentions are not binding on the jury if his acts demonstrated a contrary intent.

 

State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997).

            Adams admitted that he choked the victim for two to three minutes and that he understood that such conduct could cause a person to stop breathing.  When the victim told Adams to stop choking her and that she could not breathe, he tightened his grip around her neck and continued choking her until she passed out.  After the assault, E.S. and the victim’s son found the victim lying on the floor, moaning, with her head shaking back and forth and her eyes rolled back in her head.

            This evidence is sufficient to permit the district court to infer that Adams intended to kill the victim when he choked her until she lost consciousness and is sufficient to support Adams’s attempted second-degree intentional murder conviction.  See Alladin, 408 N.W.2d at 645, 648 (evidence that defendant repeatedly struck wife with a meat cleaver and strangled her to the point that she was unable to breathe or call out and she believed she was about to die was sufficient to prove intent and support conviction for attempted second-degree murder).

            Additional evidence also supports the finding of intent.  Adams left the victim lying on the bed without checking to see if she had a pulse or was breathing.  Instead, he went directly to a police station where he reported that he had killed his wife.  See State v. Edge, 422 N.W.2d 315, 318 (Minn. App. 1988) (defendant’s behavior after murder relevant to intent, including his failure to check girlfriend’s condition after strangulation even though she was not moving), review denied (Minn. June 21, 1988).

2.         The district court has broad discretion to depart from a presumptive sentence if aggravating or mitigating circumstances are present.  State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).  If the record supports the finding that substantial and compelling circumstance exist, this court will not interfere with the district court’s departure decision “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) (citing State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981)).

The district court imposed a 77-month upward departure from the presumptive 163-month guidelines sentence.  The aggravating circumstances the district court relied on to support the departure were that the assault occurred in the victim’s home, children were present in the area, and Adams violated an order for protection in committing the assault.

Zone of privacy

Invasion of the “zone of privacy” is an aggravating factor, because being victim of a crime occurring in one’s home imposes an additional psychological shock.  The victim’s home is no longer the “island of security” upon which the victim has previously relied, thereby making the offense particularly cruel.

 

State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991).

Citing State v. Johnston, 390 N.W.2d 451, 457 (Minn. App. 1986), review denied (Minn. Aug. 27, 1986), Adams argues that the zone-of-privacy factor does not apply to this case because he was not a stranger to the victim’s home.  The Johnston court held that the sentencing court erred in relying on the zone-of-privacy factor when the victim did not have a privacy interest in the home where the assault occurred.  Id.  The court also noted that the defendant was not a stranger to the home “as is normally the case when this factor is used to justify a sentencing departure.”  Id.

The Coley court, however, rejected the argument that the defendant must be a stranger to the victim’s household in order to find a violation of the victim’s zone of privacy and upheld the court’s reliance on the zone-of-privacy factor when the victim’s attacker was her former husband who had lived with the victim for 20 years in the house where the assault occurred.  Coley, 468 N.W.2d at 555-56.

Adams also contends that the zone-of-privacy factor does not apply because he was at the victim’s home with her permission to visit with their children.  In State v. Volk, 421 N.W.2d 360, 366 (Minn. App. 1988), review denied (Minn. May 18, 1988), this court concluded that the zone-of-privacy factor did not apply when the defendants had been invited into the victim’s home by the victim.  This case is distinguishable from Volk because, here, the victim asked Adams to leave her home before the assault occurred.  Consequently, when the assault occurred, Adams was invading the victim’s zone of privacy, even if he had not been doing so earlier.

Also, the Volk court noted that when the zone-of-privacy factor does not apply because the defendant was an invited guest, abuse of a trust relationship between the victim and defendant might be an aggravating factor.  Id.  Thus, even if the district court erred in relying on the zone-of-privacy factor, Adams’s abuse of a trust relationship was an aggravating factor.  See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (“If the reasons given [for departure] are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.”).

Presence of children

The presence of children may be an aggravating factor when committing the offense in front of the children was a particularly outrageous act and even though the children technically were not victims of the crime, they were victims in another sense.  State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982).  That is the circumstance in this case.  Seventeen-year-old E.S. witnessed part of the assault and was frightened for the victim and for herself, fearing that Adams might assault her.  See State v. Morrison, 437 N.W.2d 422, 429 (Minn. App. 1989) (upholding departure based in part on potential psychological harm to five-year-old child as a result of witnessing her younger sister’s abuse), review denied (Minn. Apr. 26, 1989).  Also, right after the assault, E.S. and the victim’s 11-year-old son found the victim lying on the floor.  The son did not think the victim was breathing.  See State v. Gaines, 408 N.W.2d 914, 918 (Minn. App. 1987) (upholding child’s presence as an aggravating factor when victim’s four-year-old daughter was in another room but heard mother’s screams during sexual assault), review denied (Minn. Sept. 18, 1987).

Violation of OFP

“Violation of a restraining order is a valid reason for an upward departure.”  Coley, 468 N.W.2d at 556 (citing State v. Lewis, 385 N.W.2d 352, 357 (Minn. App. 1986), review denied (Minn. May 29, 1986)).

Citing State v. Chase, 343 N.W.2d 695, 697 (Minn. App. 1984), Adams argues that violation of an OFP was not a proper aggravating factor because he was not charged with violating an OFP.  The Chase court held that prior uncharged sex offenses could not be used to support a departure because that would amount to sentencing a defendant for a crime for which he had not been convicted.  Id.  Chase indicates that the uncharged offenses were not related to the offenses for which the defendant was being sentenced.  The cases relied on by the Chase court also involved unrelated offenses.  See State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983) (district court improperly relied on Spreigl evidence of prior uncharged offenses); State v. Brusven, 327 N.W.2d 591, 593-94 (Minn. 1982) (district court improperly relied on evidence that defendant also committed acts of sexual misconduct with other children).

The Chase rule does not apply when the conduct at issue underlies the offense for which the defendant is being sentenced.  In deciding whether to depart,

the court may not consider evidence that points to the defendant’s guilt of some other offense but that does not support the conclusion that the defendant committed the offense in question in a particularly serious way.  On the other hand, generally it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced.

 

State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984).

            Here, Adams violated the OFP in assaulting the victim.  Adams does not dispute the existence of the OFP or that he violated it.  Therefore, the district court did not err by relying on the violation of the OFP as an aggravating factor.

The aggravating factors relied on by the district court are sufficient to support the 77-month departure, which is slightly less than a 50% departure.  See State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (generally, when aggravating circumstances are present, the upper limit on a durational departure is double the maximum presumptive guidelines sentence duration).

Affirmed.