This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





David Lynn Smith,




Filed December 24, 2002


Toussaint, Chief Judge


Meeker County District Court

File No. KX01349



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


Michael J. Thompson, Meeker County Attorney, Meeker County Courthouse, 325 Sibley Avenue North, Litchfield, MN 55355-2155 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Wright, Judge.



U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


            Appellant David Lynn Smith appeals from his conviction of, and sentence for, attempted first-degree murder and first-degree controlled substance crime, arguing that: (1) the evidence of his struggle with a police officer over a gun was insufficient to prove that Smith took a substantial step, or had the intent, to kill the officer; and (2) because the two crimes were part of the same behavioral incident under the “avoidance of apprehension” doctrine, he cannot be sentenced for both crimes.  Because the evidence is sufficient to support the verdict, and because the trial court did not abuse its discretion in holding that the crimes arose out of separate behavioral incidents, we affirm.



            Smith’s Meeker County home contained a working methamphetamine lab.  On May 8, 2001, Smith picked up a shipment of red phosphorus, a key ingredient necessary to manufacture methamphetamine.  Wright County Sergeant Hoffman and Meeker County Deputy Sheriff Cruze observed Smith pick up the shipment.  The officers then drove to Smith’s rural residence and approached Smith, who was standing behind a screen door.  Smith denied their requests to enter the house or for Smith to step outside.

            Hoffman asked Smith to step out of the house and told Smith that he would be detained while the officers obtained a search warrant.  Smith then tried to close the door to the residence, but Hoffman prevented its closure by placing his foot in the doorway.  Smith ran to the nearby kitchen table and picked up a .357 magnum revolver loaded with hollow-point bullets, described by Smith as “killer type bullets.”

            Hoffman followed Smith into the residence and saw Smith pick up the gun.  Smith turned toward Hoffman, who was able to place his hand over the gun’s hammer.  Hoffman then pushed Smith to the ground, pinning the gun under Smith.  Smith had his finger on the trigger, but Hoffman prevented the hammer from coming back far enough to cock.  The jury was shown photographs of Hoffman’s palm, which indicated that skin had been scraped off.  For a short time, the gun was pointed at Hoffman’s chest, but he spun Smith around so the gun was between Smith’s chest and the floor.  Smith then attempted to point the gun’s barrel back toward Hoffman.  When Hoffman’s hand began slipping off the gun, he yelled to Cruze, “Shoot him, shoot him.”  Smith yelled in response, “Go ahead, shoot me.”  Smith pointed the gun toward Hoffman’s mid-section, but Hoffman pushed it back so it pointed toward Hoffman’s arm.  Hoffman could again feel the hammer going back into his palm.  Hoffman then bit Smith’s elbow, pulled the gun free, dumped out the rounds, and handcuffed Smith.

            After obtaining a search warrant, the officers found in Smith’s basement a fully operational methamphetamine lab, a package of red phosphorus, and a number of loaded guns.

            Smith was charged with controlled substance crime in the first degree under Minn. Stat. § 152.021, subds. 2a, 3(a) (2000); controlled substance crime in the fifth degree, Minn. Stat. § 152.025, subd. 2(1) (2000); assault in the first degree, Minn. Stat. § 609.221, subd. 2(a) (2000); and attempted murder in the first degree, Minn. Stat. § 609.185, (4) (2000).

            Smith appeals his conviction and the trial court’s upward departure and consecutive sentences of 180 months for first-degree attempted murder and 86 months for first-degree controlled substance crime. 



Sufficiency of Evidence to Support Conviction of Attempted First-Degree Murder

            Smith first argues that the evidence was not sufficient to support the jury’s verdict finding him guilty of attempted first-degree murder.  In seeking to reverse the factual findings of the jury, an appellant bears a “heavy burden” on appeal.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).  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 jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing 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).  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 person is guilty of attempt if he intentionally “does an act which is a substantial step toward, and more than preparation for, the commission of the crime.”  Minn. Stat. § 609.17, subd. 1 (2000).  A person is guilty of murder in the first degree if he

causes the death of a peace officer * * * with intent to effect the death of that person or another, while the peace officer * * * is engaged in the performance of official duties.


Minn. Stat. § 609.185(4) (2000).  The phrase, “with intent to,”


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) (2000). 

            Here, the record contains sufficient evidence of Smith’s intent to kill, and his substantial step toward killing, Hoffman.  The evidence indicates that Smith grabbed a gun loaded with hollow-point bullets, pointed it at a police officer, and repeatedly pulled the trigger.  The trial court concluded that the only reason that the gun did not fire was because Hoffman held his hand over the gun’s hammer.  Because a jury could reasonably reach the same conclusion, there is sufficient evidence in the record to support the jury’s guilty verdict.

Consecutive Sentences for Attempted Murder and Controlled Substances Crime

            Smith argues that the attempted murder and the methamphetamine manufacturing crime were part of the same behavioral incident, so the trial court erred in departing from the sentencing guidelines by imposing separate sentences.  We disagree.

An appellate court may review whether the record supports a trial court’s determination that conduct underlying two offenses was not a single behavioral incident.  State v. Nordby, 448 N.W.2d 878, 880 (Minn. 1989).  The trial court’s determination will not be reversed on appeal unless it is clearly erroneous.  Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).

            Under Minn. Stat. § 609.035, subd. 1 (2000),

if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.


To obtain multiple sentences, the state bears the burden of proving by a preponderance of the evidence that the defendant’s conduct is not part of a single behavioral incident.  State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000).  Whether multiple offenses arose out of the same behavioral incident depends upon the facts and circumstances of a particular case.  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994).  Among the factors to consider are the singleness of purpose of the defendant and the unity of the behavior’s time and place.  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).  It must be determined whether the events occurred at substantially the same time and place and arose from a continuous, uninterrupted course of conduct.  State v. Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989), review denied (Minn. May 24, 1989).

            The trial court sentenced Smith consecutively, departing from presumptive concurrent sentences, “due to the aggravating factor that [Smith’s] actions constitute a major controlled substance offense.”  It went on to find that “the only credible explanation offered for [Smith’s] behavior on that day is that [he was] willing to kill in order to protect [his] lab.”

            While a defendant’s efforts to evade arrest or responsibility for another offense are generally considered part of the same behavioral incident, there is no such connection between manufacturing methamphetamine and attempting to shoot a police officer.  See State v. Barnes, 618 N.W.2d 805, 813 (Minn. App. 2000) (possession of drugs packaged for sale and with intent to sell included same criminal objective and constituted same behavioral incident), review denied (Minn. Jan. 16, 2001); Hawkins, 511 N.W.2d at 13(aggravated robbery of undercover officer and subsequent attempted murder of him constituted one course of conduct). 

The objective of the acts underlying Smith’s drug charge was to produce an illegal drug for Smith’s use or for another, while the objective of his acts underlying the attempted murder charge was to avoid prison.  While some offenses, such as robbery, may logically include flight and firing at pursuing police officers as a part of the crime, manufacturing methamphetamine does not logically include the attempted murder of a police officer. 

Finally, Smith’s offenses did not occur at about the same time or place, nor did they arise from a continuous, uninterrupted course of conduct.  See Secrest, 437 N.W.2d at 685.  His manufacture of methamphetamine did not occur at substantially the same time as the attempted murder.  See Hawkins, 511 N.W.2d at 13.  Rather, Smith had maintained his lab over a “lengthy period of time” before his arrest and struggle with Sergeant Hoffman.  See State v. Beard, 380 N.W.2d 537, 543 (Minn. App. 1986) (declining to find “single behavioral incident” where defendant used stolen vehicle as means of escape), review denied (Minn. Mar. 3, 1986).

            The trial court’s decision to impose separate sentences was not clearly erroneous.  Because there is sufficient evidence for a court to find that Smith’s maintenance of a methamphetamine lab and his attempt to murder a police officer were separate and distinct behavioral incidents, we affirm.