This opinion will be unpublished and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
State of Minnesota,
Richard John LaFountaine,
Aitkin County District Court
File No. K600298
Mike Hatch, Attorney General, Tracy L. Perzel, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Bradley C. Rhodes, Aitkin County Attorney, Courthouse West Annex, Aitkin, MN 56431 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Willis, Judge, and Shumaker, Judge.
GORDON W. SHUMAKER, Judge
Appellant challenges the sufficiency of the evidence to support his convictions of second-degree felony murder and first-degree burglary; argues that the district court erred by refusing to give a lesser-included-offense instruction; and contends that the court abused its discretion by sentencing him for both crimes and by departing upwardly from the presumptive sentence.
Because the evidence was sufficient to support the convictions, and the district court did not abuse its discretion or err by imposing sentences for both the second-degree felony murder and the predicate felony of first-degree burglary, we affirm.
Appellant Richard LaFountaine had an argument and a physical confrontation with his girlfriend, Sandra Hanson, in the mobile home that they shared with others. Eventually, Hanson left the mobile home and went to Louis Robbins’s trailer home nearby.
A few minutes later, Hanson heard LaFountaine outside yelling, “Where are you?” Hanson testified that LaFountaine knocked on the trailer door and that Robbins told him to come in. At some point she heard a gunshot and then saw LaFountaine and Robbins pushing each other with a rifle between them. She ran out of the trailer.
LaFountaine called 911 and told the dispatcher that Robbins had shot at him and that he beat Robbins with a shotgun and knocked him down. In a second 911 call, LaFountaine said Robbins had shot at him while he was outside, and then he came in and knocked Robbins out. LaFountaine hung up but the dispatcher called him back and asked if he had hit Robbins. LaFountaine said he had, but “he got up, he’s sittin’ here at the table talkin’ to me.”
Aitkin County Sheriff’s deputies went to the Robbins’ residence to investigate. LaFountaine told a deputy that Robbins had shot at him outside the trailer, that he ran inside, took the gun away, broke it over his knee, and punched Robbins twice.
When the deputies entered Robbins’s trailer they found Robbins lying on a couch with obvious injuries to his face and head. They checked his pulse and determined that he was dead. A medical examiner later determined that Robbins had sustained 62 soft-tissue injuries from blunt trauma.
A grand jury indicted LaFountaine on various counts of homicide and burglary. A jury convicted him of second-degree felony murder and first-degree burglary. The district court sentenced him on both counts, departing upwardly from the presumptive sentence for the murder.
On appeal, LaFountaine contends that the evidence was insufficient to support the convictions, that the district court erred by refusing to instruct on heat-of-passion manslaughter as a lesser-included offense, that the court abused its discretion by sentencing him on both the predicate crime and the homicide, and that the court abused its discretion by departing from the presumptive sentence.
LaFountaine contends on appeal that there was insufficient evidence to support a finding that he entered Robbins’s home without consent and, therefore, his conviction for burglary, and necessarily his felony-murder conviction, must be reversed. When 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 jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). A conviction can rest on the testimony of a single witness, and it is the jury that determines the weight and credibility to be assigned to individual witnesses. State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).
To convict a person of second-degree felony murder, the state must show beyond a reasonable doubt that the defendant (1) caused the death of a human being, (2) without intent to effect the death of any person, and (3) while committing or attempting to commit a felony offense. Minn. Stat. § 609.19, subd. 2 (1) (1998).
The predicate felony offense charged in this case is first-degree burglary:
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree * * * if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building; [or]
* * * *
(c) the burglar assaults a person within the building * * * .
Minn. Stat. § 609.582, subd. 1 (1998).
"Enters a building without consent” means:
(a) to enter a building without the consent of the person in lawful possession * * * .
Minn. Stat. § 609.581, subd. 4 (1998).
In support of his argument, LaFountaine points to the testimony of his girlfriend, Sandra Hanson. At trial Hanson testified that she was sitting in Robbins’s kitchen with Robbins on the night of the incident when she heard LaFountaine calling out for her. Hanson testified that LaFountaine “came up to the door and knocked, and then [Robbins] told him to come in, and he started arguing with me.” However, other witnesses testified that LaFountaine had described the incident differently. At trial, two sheriff’s deputies and LaFountaine’s brother, Terry LaFountaine, testified that LaFountaine told them that he was outside the door of Robbins’s home when he heard a gun cock and then a bullet whizzed by his head. He said that he then rushed into the home to disarm Robbins. Under this version, attributed to LaFountaine himself, LaFountaine entered Robbins’s home without invitation or Robbins’s consent. The jury had an opportunity to judge the credibility of the witnesses, and the testimony of these three witnesses supports a conclusion that LaFountaine entered Robbins’s mobile home without consent. Therefore, the evidence was sufficient to support the burglary conviction.
2. Lesser-included-offense instruction
LaFountaine argues that the district court abused its discretion by refusing to give a jury instruction on the lesser-included offense of first-degree manslaughter (heat of passion). A lesser-included offense is necessarily included if one cannot commit the latter without also committing the former. Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986). To determine whether an offense is a lesser-included offense, the court looks to the elements of the offense, not to the facts of the specific case. Id. If an offense is a lesser-included offense, it must be determined whether the lesser-included offense should be submitted to the jury. Id.
Whether a lesser offense is submitted to the jury is within the discretion of the district court, but the district court must give the instruction if the evidence warrants it. Id. The court must give an instruction on a lesser-included offense if (1) the offense in question is an “included” offense under Minn. Stat. § 609.04, subd. 1 (1998), and (2) there is a rational basis for the jury to acquit a defendant of a charged offense and to convict him of the lesser offense. State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994).
The mere fact that the jury has the power to acquit irrationally in the teeth of overwhelming evidence of guilt may not be used as the reason for submitting lesser offenses.
State v. Nystrom, 596 N.W.2d 256, 261 (Minn. 1999) (quotation and citation omitted). “Thus, proof of the elements which differentiate the two crimes must be sufficiently in dispute so that a jury may make this distinction.” Bellcourt, 390 N.W.2d at 273 (quotation and citation omitted).
It has been held that first-degree manslaughter is a lesser-included offense of second-degree felony murder. State v. Galvan, 374 N.W.2d 269, 271 (Minn. 1985). The issues remaining on appeal are whether there was a rational basis for the jury to acquit LaFountaine of second-degree felony murder and to convict him of first-degree manslaughter instead.
Although the jury could have believed Sandra Hanson’s testimony over that of the two sheriff’s deputies and Terry LaFountaine, and could have acquitted LaFountaine of second-degree felony murder, the evidence does not support an inference that LaFountaine acted in the heat of passion.
A person is guilty of first-degree manslaughter if he
intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances.
Minn. Stat. § 609.20(1) (1998). “[A] ‘person of ordinary self-control’ does not include a person under the influence of intoxicants or a controlled substance.” Minn. Stat. § 609.20 (1998).
“To determine whether there were acts sufficient to provoke a person of ordinary self-control under like circumstances requires an objective analysis.” Nystrom, 596 N.W.2d at 262. “On appeal we look at the record as a whole to make these determinations.” Id.
It is likely that, by shooting at LaFountaine, Robbins completed an act sufficient to provoke a person of ordinary self-control. See Stevenson v. U.S., 313, 320-22, 162 U.S. 319-20, 16 S. Ct. 839, 841-42 (1896) (determining that defendant was entitled to instruction on manslaughter where victim was killed after shooting a pistol into the room and while defendant and victim were “fresh from an altercation); Ross v. State, 211 N.W.2d 827, 828, 833 (Wis. 1973) (holding that manslaughter instruction should have been provided to the jury where evidence suggested that following a series of prior altercations and encounters the victim pointed and attempted to shoot a gun at defendant). Nevertheless, the record does not support a finding that LaFountaine responded in the heat of passion.
To determine whether a killing was done in the heat of passion requires a subjective analysis. Nystrom, 596 N.W.2d at 262. This analysis focuses on the emotional state of the defendant. Id. State v. Boyce discusses the difference in state of mind between a defendant acting in self-defense and one acting in the heat of passion:
The dividing line between self-defense and this character of manslaughter seems to be the existence, as the moving force, of a reasonably founded belief of imminent peril to life or great bodily harm, as distinguished from the influence of an uncontrollable fear or terror, conceivable as existing, but not reasonably justified by the immediate circumstances. If the circumstances are both adequate to raise, and sufficient to justify, a belief in the necessity to take life in order to save oneself from such a danger, where the belief exists and is acted upon, the homicide is excusable upon the theory of self-defense * * * , while, if the act is committed under the influence of an uncontrollable fear of death or great bodily harm, caused by the circumstance, but without the presence of all the ingredients necessary to excuse the act on the ground of self-defense, the killing is manslaughter.
State v. Boyce, 284 Minn. 242, 257, 170 N.W.2d 104, 114 (1969) (emphasis omitted) (quotations and citations omitted).
The evidence does not rationally support an inference that LaFountaine’s reaction to being shot at was characterized by heat of passion. Rather, LaFountaine showed control, calculation, and reflection. Nothing suggests that he entered Robbins’s trailer under the influence of an uncontrollable fear of death or great bodily harm. He entered determined to take Robbins’s gun away. After he did that, he beat Robbins with it so badly that Robbins hemorrhaged more than two quarts of blood internally. LaFountaine then told the 911 dispatcher that Robbins was all right and that Robbins did not want the police to come because he was fine.
Although LaFountaine gave various versions of the incident to the 911 dispatcher and to the deputies, no version supports his contention that he acted in the heat of passion. Thus, there was no rational factual basis for a first-degree manslaughter conviction, and the court did not err in refusing to instruct the jury on that crime as a lesser-included offense of second-degree felony murder.
3. Upward departure
In support of the upward departure, the district court found that LaFountaine invaded the victim’s zone of privacy, that the victim was particularly vulnerable due to his age and physical infirmities, and the victim was treated with particular cruelty. We agree with LaFountaine that entering Robbins’s zone of privacy is not a proper ground for departure in this case because it is an element of first-degree burglary of which Robbins was convicted. See State v. Spaeth, 552 N.W.2d 187, 196 (Minn. 1996) (could not use factor that victim was attacked in her home as basis for departure where defendant was convicted and sentenced for burglary); State v. Gardner, 328 N.W.2d 159, 162 (Minn. 1983) (could not use injury to victim as grounds for departure when it was an element of the crime for which defendant was convicted and sentenced). But we find the remaining factors that the court relied upon to be sufficient to support the departure.
According to the Minnesota Sentencing Guidelines, vulnerability of the victim and particular cruelty are among factors that can be relied on for an upward departure:
(1) The victim’s vulnerability due to age, infirmity or reduced physical or mental capacity, which was known or should have been known to the offender.
(2) The victim was treated with particular cruelty for which the individual offender should be held responsible.
Minn. Sent. Guidelines II.D.2.b.
LaFountaine knew that Robbins was 66 years old and suffered from various health problems. LaFountaine knew that Robbins had a pacemaker, was recovering from a stroke, and walked with a limp from recent knee surgery. We find that such facts support the district court’s finding that the victim was particularly vulnerable to a beating, and the court did not err by departing on this ground. State v. Rodriguez, 505 N.W.2d 373, 377-78 (Minn. App. 1993) (elderly and frail victim), review denied (Minn. Oct. 19, 1993); State v. Bock, 490 N.W.2d 116, 121-22 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992) (finding victim vulnerable because he was knocked down by first blow and therefore dazed when he received subsequent blows); State v. Hodges, 384 N.W.2d 175, 183-84 (Minn. App. 1986) (finding advanced age of victim made her vulnerable), aff’d as modified on other grounds, 386 N.W.2d 709 (Minn. 1986).
LaFountaine argues that particular cruelty was not an appropriate departure ground because the murder was not different in kind or degree from the typical felony murder. Cruelty is a matter of degree, and it is sometimes difficult to say when a departure is warranted. Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989). Typically the district court must decide whether the defendant’s conduct was “more or less serious than that typically involved in the commission of the crime in question.” Id. (citing State v. Back, 341 N.W.2d 273, 276 (Minn. 1983)).
In cases where there were multiple wounds to the victim, evidence has supported a finding of particular cruelty and departure has been affirmed. Compare State v. Kisch, 346 N.W.2d 130, 133 (Minn. 1984) (finding defendant’s conduct more serious than typical felony murder where victim suffered four blows to the head, causing head to explode), and State v. Vogelpohl, 326 N.W.2d 635, 636 (Minn. 1982) (finding murder particularly cruel when victim hit on head at least eight times with two different hammers and defendant put paper in victim’s mouth to mask dying sounds), and State v. Rathbun, 347 N.W.2d 548 (Minn. App. 1984) (multiple stab wounds can indicate particular cruelty and support an upward departure) with Holmes, 437 N.W.2d at 58-60 (finding that stabbing victim three times was not significantly more cruel than an offense normally associated with intentional murder).
Here, the evidence showed that Robbins was struck with the rifle four times and that he endured additional blows from some other blunt object such as a fist. Robbins suffered extensive external, soft-tissue injuries and eventually died from internal bleeding cause by a mesentery laceration. The evidence also indicates that some of the blows occurred while Robbins was lying down. Therefore, the record supports the district court’s determination that Robbins was treated with particular cruelty that culminated with his death, and the district court did not abuse its discretion by departing upwardly when sentencing LaFountaine.
4. Sentencing for both burglary and felony murder
Finally, LaFountaine argues that the district court erred by sentencing him for both the second-degree felony murder and the predicate felony of first-degree burglary. He argues that the sentence violates Minn. Stat. § 609.04, subd. 1, which precludes convictions for both a charged crime and an included offense, but allows a conviction of one or the other.
Burglary can be a predicate felony and a lesser-included offense of felony murder. Hodges, 348 N.W.2d at 183. The facts of this case show that LaFountaine’s burglary was the predicate felony and a lesser-included offense of the second-degree murder.
But, despite the section 609.04 preclusion, section 609.585 allows a conviction of burglary in addition to the crime as to which burglary was the predicate:
Notwithstanding section 609.04, a prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.
Minn. Stat. § 609.585 (1998).
Under the clear language of section 609.585, it was proper for the district court to sentence LaFountaine for both second-degree felony murder and the lesser-included predicate felony of first-degree burglary. Hodges, 348 N.W.2d at 182.
5. Pro se issues
We have also considered LaFountaine’s pro se arguments challenging the district court’s decision to deny a change of venue, admission of a police report as evidence at trial, failure to instruct the jury on superceding and intervening cause, as well as LaFountaine’s arguments related to judicial bias, prosecutorial vindictiveness, and ineffective assistance of counsel. On this record and on applicable law, we find no merit in appellant's pro se arguments.