This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Anna Marie Hansen,
Otter Tail County District Court
File No. K501279
Mike Hatch, Attorney General, Donald G. Heeman, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
David Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.
Appellant challenges her convictions of attempted first- and second-degree murder, arguing that the evidence was insufficient to convict her because the victim’s testimony lacked credibility. Appellant also challenges her sentence, asserting that the trial court abused its discretion in denying appellant’s motion for a dispositional or durational sentencing departure. Because the evidence was sufficient to support appellant’s convictions and the trial court acted within its discretion by imposing the presumptive sentence, we affirm.
Appellant Anna Marie Hansen separated from her husband in February 2000 and moved to Colorado with their four-year-old son, D.H. Appellant returned to Minnesota three months later and lived with her mother, Betty Worthen, while she attempted to reconcile with her husband. Appellant had authority to sign checks from Worthen’s checking account and occasionally wrote checks from that account to buy things for her mother. Sometime around September 2000, Worthen’s house was destroyed by fire and Worthen received an insurance settlement. Worthen gave appellant approximately $5,000 of the insurance settlement to cover the items that appellant had lost in the fire and to assist her financially.
Appellant claimed that Worthen’s checkbook was in the home when the fire occurred. But soon thereafter, Worthen started seeing discrepancies between the amount she thought she had in her account and her bank statements. As a result, Worthen transferred most of the money into a different account. When Worthen later found her allegedly destroyed checkbook in appellant’s purse, Worthen told appellant never to write unauthorized checks again. Soon after, appellant and D.H. returned to Colorado.
On February 10, 2001, appellant and D.H. returned to Minnesota. They stayed with appellant’s husband and visited Worthen two days later. Early in the week of February 12, appellant found Worthen’s checkbook and wrote a check for $2,000 made payable to herself. Appellant later claimed that she did so with her mother’s approval.
Worthen testified that she noticed that a check was missing from her checkbook on February 14. She suspected appellant and contacted appellant to tell her to return it. Appellant admitted that she had cashed the $2,000 check and the two argued.
Appellant and D.H. went to Worthen’s apartment on the afternoon of February 15, using a key Worthen had given her to enter. When they arrived, Worthen was asleep in her bedroom. According to Worthen, she woke up when appellant entered the bedroom. When Worthen rolled over, appellant grabbed Worthen’s right arm and cut her wrist. Worthen tried to get up and run away, but appellant grabbed her from behind, shoved something in her mouth, and started to choke her. During the struggle, Worthen fell facedown on the floor, and appellant sat on top of her and continued to choke her. Worthen stated that the only thing she could do was to play “dead.” When appellant left the bedroom, Worthen attempted to write appellant’s name in blood on a box that was near the foot of the bed. But appellant smeared the writing when she re-entered the bedroom and again choked Worthen before returning to the living room. Worthen then heard her grandson, D.H., inquire, “Mommy, why are you wearing gloves?” According to Worthen, appellant continued to go in and out of the bedroom, at one point slitting Worthen’s left wrist. After 30-45 minutes, appellant and D.H. left.
Worthen testified that she crawled to the phone to call 911 but could not get a dial tone. Worthen looked behind a small stand and saw that the phone was unplugged. She moved the stand away from the wall, plugged in the phone, and called. She told the dispatcher that her daughter had just tried to kill her. Worthen then crawled over to the front door and unlocked it. Worthen next called her employer and left a message stating that her daughter had just tried to kill her. Worthen called 911 a second time, and was told that help was on the way. An ambulance arrived a few minutes later and Worthen was taken to the hospital. Worthen’s injuries included cuts on her wrists, face, and chin, bruising on her eyebrow, and swollen lips.
Officers arrested appellant at her husband’s home and impounded the van parked in the driveway. Chief Investigator Scott Fox, a police officer with the City of Pelican Rapids, interviewed appellant. Appellant told Investigator Fox that she and D.H. had been at her mother’s apartment, but that they left after she and her mother had an argument.
An investigation conducted by the Pelican Rapids police department revealed blood in the living room and in several places in the bedroom, including on the telephone stand, phone jack and line, bed, and smeared on a box. The phone stand was out of place. A bloody razorblade and a plastic container containing razorblades were found in the bedroom. Investigator Fox testified that, in his opinion, the blood found in Worthen’s apartment was consistent with Worthen’s account of the incident.
Agents with the Bureau of Criminal Apprehension recovered several items from appellant’s van, including a yellow bag, a pair of red gloves, a package of razorblades, two pairs of sweatpants, and some cash. Appellant’s fingerprints were found on the package of razorblades found in the van and on the razorblade that was found in Worthen’s apartment. Using DNA analysis, the BCA found blood matching Worthen’s profile on the razorblade found in Worthen’s apartment, the sweatpants and red gloves found in appellant’s vehicle, and the right shoe that appellant was wearing at the time she was arrested.
Appellant was charged with attempted first-degree murder in violation of Minn. Stat. §§ 609.17, .185(1) (2000), and attempted second-degree murder in violation of Minn. Stat. §§ 609.17, .19, subd. 1(1) (2000). At the conclusion of a five-day jury trial, appellant was found guilty. The trial court sentenced appellant to 180 months, the presumptive sentence for a conviction of attempted first-degree murder. This appeal follows.
D E C I S I O N
1. Sufficiency of the Evidence.
Appellant argues that the evidence was insufficient to support her conviction because Worthen’s testimony was not believable. In considering a claim of the sufficiency of the 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, was sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). It is the exclusive role of the jury to determine the weight and credibility of witness testimony. State v. Folkers, 581 N.W.2d 321, 326 (Minn. 1998). In considering an appeal based on insufficiency of the evidence, this court must assume that 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). This 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 have reasonably concluded that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Minn. Stat. § 609.185 (2000) provides that whoever “causes the death of a human being with premeditation and with intent to effect the death of the person or of another” is guilty of murder in the first-degree and shall be sentenced to imprisonment for life. Minn. Stat. § 609.19 (2000) states that whoever “causes the death of a human being with intent to effect the death of that person or another, but without premeditation” is guilty of murder in the second-degree and may be sentenced to imprisonment for not more than 40 years. Minn. Stat. § 609.17 (2000) addresses the issue of attempting to commit a crime and states in relevant part the following:
Subdivision 1. 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 * * * .
The jury found appellant guilty of attempted first- and second-degree murder under the above statutes.
Appellant testified that a significantly different version of events occurred on and before February 15, 2001. According to appellant, Worthen gave her permission to write herself a $2,000 check from Worthen’s checking account, and Worthen was so upset by appellant’s decision to move back to Colorado that Worthen tried to commit suicide by cutting her wrist with a razorblade while appellant was at her apartment.
Appellant asserts that Worthen is mentally unstable and that she concocted the story that she “played dead” while appellant tried to kill her. Appellant contends that Worthen’s explanation that she laid still while appellant cut her left wrist is unbelievable because Worthen would have had to flinch, pull away, or react in some way. Appellant also asserts that Worthen’s testimony that appellant stole and forged checks is untruthful, because appellant did not need permission to write checks, given that it was a joint account. Lastly, appellant argues that Worthen’s testimony lacked credibility because the cuts on her wrist were only superficial. Therefore, when appellant left Worthen’s house, there was no emergency and no reason for appellant to call 911.
Appellant raises issues related to Worthen’s mental stability based on information contained in a presentence investigation report and a psychological evaluation. When this court assesses the sufficiency of the evidence to sustain a guilty verdict, the inquiry is limited to whether a jury could have reasonably concluded from the facts in the record that the defendant was guilty of the crime charged. State v. Gillam, 629 N.W.2d 440, 453 (Minn. 2001). But the presentence investigation report and psychological evaluation were not part of the record submitted to the jury.
Appellant also asserts that the evidence in the record supports her version of events. It is the role of the jury to determine the weight and credibility of each witness’s testimony. State v. Bowles, 530 N.W.2d 521, 533 (Minn. 1995). This role
is especially true where resolution of the case depends on conflicting testimony, because weighing the credibility of witnesses is the exclusive function of the jury.
State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). The jury in this case was presented with two very divergent explanations for Worthen’s physical condition. After hearing the testimony of both appellant and Worthen, the jury found Worthen’s testimony to be credible. The jury’s determination of credibility will not be disturbed on appeal.
Appellant argues that the trial court abused its discretion by denying appellant’s motion for a dispositional or durational sentencing departure and by imposing the presumptive sentence of 180 months. Only in a “rare” case will a reviewing court reverse a trial court’s imposition of the presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The sentences set forth in the Minnesota Sentencing Guidelines are presumed to be appropriate for every case. Minn. Sent. Guidelines II.D.
A trial court may consider any relevant factors when determining whether there is a substantial basis to make a dispositional departure. State v. Case, 350 N.W.2d 473, 475 (Minn. App. 1984). Relevant factors for a court to consider include: the defendant’s age, prior record, remorse, cooperation, attitude while in court, particular amenability to a probationary setting, and whether the defendant has strong support from family and friends. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
Appellant argues that she should have been given a probationary sentence because she was only 30 years old at the time of the incident, had no criminal history, cooperated fully with authorities and the court, and has the support of her family and friends. She asserts that she did not express remorse because she did not commit the offense, but has expressed remorse over the deterioration of her relationship with her mother. Further, appellant argues that the family dynamic and chaotic nature of her upbringing by Worthen justify a dispositional departure. Appellant’s argument relies in part on the psychological assessment of R.P. Ascano, Ph.D., that concludes that appellant is amenable to probation.
In denying appellant’s motion for a dispositional departure, the trial court focused on appellant’s lack of remorse and Worthen’s statement that she would fear for her own safety if appellant were released. The trial court also considered Dr. Ascano’s findings that a person with appellant’s personality type is subject to angry, uncontrollable outbursts, temper tantrums, and to act impulsively. As a result, the trial court concluded that appellant would not be amenable to probation.
While there may be Trog factors for and against a dispositional departure in this case, the trial court has broad discretion when imposing the presumptive sentence and this court generally will not interfere with that discretion. Here, the trial court analyzed the appropriate factors and was within its discretion in denying appellant’s motion for a dispositional sentencing departure.
Appellant also argues that the trial court abused its discretion by denying her motion for a durational sentencing departure. Generally, the trial court is required to impose the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. Kindem, 313 N.W.2d at 7. Factors that may be used to justify a downward departure include whether (1) the victim was the aggressor, (2) the offender played a minor or passive role in the crime or participated under circumstances of coercion or duress, and (3) the offender lacked substantial capacity for judgment when the offense was committed because of physical or mental impairment. Minn. Sent. Guidelines II.D.2.a.(1)-(3).
Since the trial court is in the best position to determine whether circumstances warrant a departure, we will not ordinarily interfere with a sentence in the presumptive range, even if there are grounds to justify departure.
Herme v. State, 384 N.W.2d 205, 209 (Minn. App. 1986) (citation omitted), review denied (Minn. May 22, 1986). A trial court may also consider whether or not the defendant’s conduct was more or less serious than that typically involved in the commission of the crime in question. State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).
Appellant argues that, in a case of attempted murder, it is necessary for the offender to take a substantial step toward committing murder, and, here, appellant’s “step” was not substantial. In support, she argues that Worthen’s injuries were superficial and would not have resulted in death. Appellant also asserts that the incident did not upset Worthen and that there was no evidence that Worthen experienced pain or fear. Appellant concludes that this evidence demonstrates that her conduct was less serious than that typically involved in a case of attempted murder, thereby justifying a downward departure.
The trial court analyzed the possible mitigating factors and found that Worthen was not the aggressor, appellant’s role was not minor or passive, and appellant did not lack capacity for judgment. The trial court also examined whether appellant’s conduct was more or less serious than that typically involved in the commission of attempted murder. The court found that the cruelty of the attack, the long period of premeditation, appellant’s lack of remorse, and the fact that the crime was carried out in close proximity to appellant’s child were aggravating factors that were inconsistent with a downward departure. The trial court was within its discretion in denying appellant’s motion for a durational sentencing departure.
Finally, appellant raises several arguments in her pro se supplemental brief, including a claim that evidence beneficial to appellant was not introduced at trial. We have considered appellant’s pro se arguments asserting judicial and prosecutorial misconduct, and we conclude that the arguments are without merit. Without reaching the merits of appellant’s claim of ineffective assistance of counsel, we preserve it for consideration in a postconviction proceeding, should appellant choose to assert it.