This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Lou Ann Thompson,
Carlton County District Court
File No. K2001308
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Marvin Ketola, Carlton County Attorney, Paul T. Shaffer, Assistant County Attorney, Room 202 Courthouse, P.O. Box 300, Carlton, MN 55718-0300 (for respondent state)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Aaron Marcus, Certified Student Attorney, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant Thompson)
Considered and decided by Shumaker, Presiding Judge, Wright, Judge, and Huspeni, Judge.
In challenging her conviction of second-degree assault with a dangerous weapon, appellant argues that the evidence was insufficient to support the jury verdict of guilty, that rebuttal testimony was erroneously admitted at trial, and that the jury returned inconsistent verdicts. Respondent cross-appeals, arguing that the trial court abused its discretion by departing dispositionally at sentencing. We conclude that the record contains sufficient evidence to support the verdict, there was no error in admitting rebuttal testimony, the jury’s verdicts were not inconsistent, and the trial court did not abuse its discretion in sentencing. Therefore, we affirm.
Appellant Lou Ann Thompson’s son, Cheyenne, was killed in an automobile accident. After his death, conflicts arose between his family and the family of his former live-in girlfriend, Jo Lynn Nordrum. These conflicts culminated in an encounter outside the Thompsons’ former home. Appellant and members of her family argued with Jo Lynn Nordrum, her mother Judy, and her brother James. Apparently, Jo Lynn sought to remove a car she believed was hers from the Thompsons’ yard. Appellant considered the car to be her property and called the police to report Jo Lynn for theft. While the police were en route to the scene, dispatchers received a call from James Nordrum, who reported that appellant had pointed a gun at him.
When police arrived, they questioned and arrested both appellant and her husband, Bruce. All three Nordrums reported seeing appellant with a small rifle that she had brandished at James. No guns were found at the scene or in appellant’s home. James stated that appellant’s teenage son had been present, but had run away with the gun before police arrived. Later, five rounds of .22 caliber ammunition were found in Bruce Thompson’s pocket.
Appellant was charged with one count of second-degree assault with a dangerous weapon under Minn. Stat. § 609.222, subd. 1 (2000). The complaint was later amended to charge three separate assaults, one each for James, Judy, and Jo Lynn Nordrum. At trial, Judy Nordrum testified that appellant had pointed a rifle at her and at James Nordrum. Jo Lynn Nordrum testified that she saw appellant holding a gun pointed at James, but that she did not recall appellant pointing the gun at her or Judy. James testified that appellant trapped him in his truck by pointing a rifle directly at him and that she had waved the gun in the general direction of Jo Lynn and Judy, but had not taken aim at them. He testified that appellant’s teenage son had run away with the gun before police arrived. Several police officers also testified regarding statements of both the Thompsons and the Nordrums on the day of the incident.
Appellant’s teenage son, appearing as a defense witness, testified that he had been with his parents on the day of the incident, that he left before police arrived, and that no guns were involved. He also testified that his parents did not own any guns. Two neighbors and appellant’s sister also testified that they had not seen any guns that day and that they did not know the Thompsons to own any guns.
Appellant testified on her own behalf. She maintained that there had been no guns involved in the argument, that she did not allow guns in her home, and that although her deceased son, Cheyenne, had been an avid sportsman and hunter, he knew she did not like guns and would never allow them in her own home. Appellant also explained that her husband had found ammunition in Cheyenne’s old toolbox and had put shells in his pocket to avoid accidentally discharging them while removing and replacing tools.
Over defense objection, the state was permitted to call a police officer as a rebuttal witness. He testified that he had occasion to be in the Thompsons’ former home five days before this incident, on matters unrelated to it. While in the home, he noticed a .22 caliber rifle and a BB gun on the floor. In response, appellant testified that she had been out of town the day of the officer’s visit, she no longer lived in that home that day, and when she did return to the home, she found no guns.
The jury returned verdicts of not guilty as to the alleged assaults on Judy and Jo Lynn Nordrum, and guilty as to the assault on James Nordrum. At sentencing, contrary to the state’s request, the trial court stayed the 36-month mandatory minimum sentence and placed appellant on five years’ probation, including one year to be served at a local work-release facility. This appeal and cross-appeal followed.
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, 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).
Appellant supports her claim that the state presented insufficient evidence for conviction by noting, first, that no gun was ever recovered, and, second, that she, her family, and her neighbors all testified that she did not own a gun or have one that day. All three Nordrums, however, testified that appellant held a gun pointed at James. “Where the case is based upon conflicting testimony, it is the exclusive function of the jury to weigh the credibility of the witnesses.” State v. Blair, 402 N.W.2d 154, 158 (Minn. App. 1987) (citations omitted). This court must assume that after examination by counsel, the jury found the state’s witnesses more credible than appellant’s. A jury could reasonably believe from the Nordrums’ testimony that appellant pointed a gun at James, and that her son left the scene with the gun before police arrived. Essentially, appellant argues that the jury should have believed defense witnesses rather than those of the state. That argument must fail.
Appellant also argues that the trial court erred in admitting the rebuttal testimony of the police officer, because that testimony does not show that appellant had a gun on the day of the incident, and because any probative evidentiary value is outweighed by prejudicial effect. We disagree. Proper rebuttal evidence is that which “explains, contradicts, or refutes defendant’s evidence.” State v. Walker, 235 N.W.2d 810, 815 (Minn. 1975). A district court has considerable discretion in determining what evidence should be admitted for rebuttal purposes. State v. Sullivan, 502 N.W.2d 200, 203 (Minn. 1993). Rebuttal testimony that a gun was seen in appellant’s home directly contradicted appellant’s statement that she had never owned a gun or allowed one in her home. Evidence tending to prove that appellant had access to a rifle was not impermissibly prejudicial. The jury remained free to believe testimony of defense witnesses that no guns were present the day of the incident. The trial court did not abuse its discretion by admitting this testimony.
Finally, appellant claims that the jury returned “logically inconsistent” verdicts as to the three alleged victims and that this court should be concerned that the standard of reasonable doubt may have been compromised. We disagree. All three Nordrum witnesses testified that appellant pointed a gun directly at James. Their testimony was less certain as to whether appellant had pointed a gun at Jo Lynn or Judy Nordrum. A jury reasonably could conclude that appellant had deliberately assaulted James with a firearm, but not the other two Nordrum family members, who were some distance away. These conclusions are not inconsistent, and in any event, would not constitute a legal inconsistency furnishing grounds for reversing appellant’s conviction. United States v. Powell, 469 U.S. 57, 66, 105 S. Ct. 471, 477 (1984).
In general, the decision to depart from sentencing guidelines rests within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). But, when a trial court departs from the guidelines, “it must articulate substantial and compelling reasons justifying the departure.” State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citation omitted); Minn. Stat. § 609.11, subd. 8(a) (2000).
Appellant was convicted under Minn. Stat. § 609.222, subd. 1 (2000), and had a criminal history score of zero. Ordinarily, such a conviction would result in a stayed sentence of 21 months. Minn. Sent. Guidelines IV. There are exceptions, however. Some offenses carry with them a mandatory minimum sentence due to the use of a dangerous weapon. When a dangerous weapon is involved, as was the case here, a second-degree assault conviction is subject to a mandatory minimum term of 36 months’ imprisonment under Minn. Stat. § 609.11, subd. 5 (2000). The trial court departed dispositionally from this statutorily mandated sentence when it placed appellant on probation, finding substantial and compelling reasons to do so. See Minn. Stat. § 609.11, subd. 8 (allowing departures from the guidelines when substantial and compelling reasons are present).
In its cross-appeal, the state argues that the trial court abused its discretion in sentencing appellant, and relied on inappropriate factors in its dispositional departure. We see no abuse of discretion. In determining that the five-year probationary term was appropriate, the trial court noted that appellant had been cooperative with the court and with the probation office, that she had a good support network of family and friends, that she had virtually no criminal history, and that she was highly amenable to probation and individualized treatment. Many of these conclusions were based on the report of a senior probation officer who had worked with appellant over the course of her pretrial release period, which totaled nearly a year and a half. The court also found that the five-year probation term was structured, strict, and long enough to ensure the public safety while simultaneously rehabilitating appellant.
The supreme court has noted a number of factors that a district court may consider in determining whether a particular defendant is well-suited to probation and individualized treatment. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). These factors include the defendant’s age, prior record, attitude in court, remorse, cooperation, and support of family and friends. Id. The trial court in this case cited several Trog factors, and our review of the record reveals support for those factors. The court acted well within its discretion in concluding that the enumerated factors and the recommendation of appellant’s probation officer constituted substantial and compelling reasons to dispositionally depart from the mandatory minimum sentence.
In her pro se supplemental brief, appellant argues that she received ineffective assistance from her trial counsel. Our thorough review of the record convinces us that appellant has failed to show that her counsel’s performance fell below an objective standard of reasonableness or that she was prejudiced by any of counsel’s actions. See Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). We find appellant’s claim to be without merit.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.