This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed April 1, 2003
Hennepin County District Court
File No. 01105594
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Jennifer M. Inz, Eden Prairie City Attorney, 1600 Park Building, 650 Third Avenue South, Minneapolis, MN 55402-4337 (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from his convictions of domestic assault and interference with an emergency call, appellant Kefa Kebaso argues that (1) the evidence is insufficient to support the conviction of domestic assault, (2) one of the two convictions must be vacated because both charges arose out of the same behavioral incident, and (3) his case should be remanded for written findings of fact as required by Minnesota Rule of Criminal Procedure 26.01, subd. 2. Because there is sufficient evidence to support Kebaso’s conviction of domestic assault, we affirm the conviction, but because Kebaso’s two gross-misdemeanor convictions arose out of a single behavioral incident, we remand to the district court with instructions to vacate one of the two sentences; and we remand for the district court to make specific written findings on the gross-misdemeanor convictions.
On December 25, 2001, a woman later identified as Emily Kefa called 911 but left the phone. The call remained connected, and the 911 operator could hear a woman screaming and saying, “Call 911, call 911.” Eden Prairie Police Officers Swenson and Gulden were dispatched to investigate a “possible domestic.”
The officers arrived at the apartment from which the call originated, knocked on the door, and identified themselves as police officers. While outside the door, they heard a woman yelling “kill me” and “knife.” The officers kicked in the door and entered the apartment with their guns drawn. Upon entering, they found Kebaso, Kefa, and their 12-year-old son in the living room and instructed them to get onto the floor; Kebaso refused. While the officers were handcuffing Kebaso, a chair in the living room was moved, and the officers saw a meat cleaver on the floor. When Kefa saw the cleaver, she yelled, “That’s the knife that he was going to use to kill me.”
Kefa told the officers that she tried to leave the apartment that night and that Kebaso prevented her from doing so. She also told the officers that Kebaso had shown her the cleaver earlier in the evening, that she was afraid that he was going to use it to harm her, and that he took the phone away from her while she was talking with the 911 operator. Kebaso told the officers that he and Kefa had been arguing and that Kefa called 911 because she needed someone to defend her. When asked why the cleaver was under a chair in the living room, Kebaso responded that he did not know.
At trial, Kebaso denied that he had threatened Kefa or that he knew she was calling 911 when he took the phone away from her. But on cross-examination, Kebaso conceded that he realized Kefa was calling 911 when he took the phone away from her. Kebaso also testified that after using the cleaver for cooking and opening beer bottles, he placed it under a chair in the living room so that nobody would step on it. Kefa, who testified on Kebaso’s behalf, could not explain why she had yelled “kill me” and “knife,” could not remember being afraid of Kebaso while he held the cleaver, and could not explain why she made a written report of domestic abuse to the police officers.
The district court found Kebaso guilty of both of the charges on appeal here but made no specific findings of fact. The court imposed concurrent sentences of 365 days in jail and a $200 fine for each of the two convictions. The sentences were stayed and Kebaso was given three years probation on the condition, inter alia, that he serve 120 days concurrently for each of the gross-misdemeanor charges. Kebaso was also sentenced to 90 days in jail for a related conviction of disorderly conduct, which Kebaso does not challenge on appeal. This appeal followed.
Kebaso alleges that there is insufficient evidence to support his conviction of domestic assault. In reviewing a claim of insufficient evidence, this court conducts 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). And circumstantial evidence is entitled to the same weight as any other evidence. State v. Dick, 638 N.W.2d 486, 492 (Minn. App. 2002) (quotation omitted), review denied (Minn. Apr. 16, 2002).
The district court found appellant guilty of domestic assault, which is defined as:
Whoever does any of the following against a family or household member as defined in section 518B.01, subdivision 2, commits an assault and is guilty of a misdemeanor:
(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or
(2) intentionally inflicts or attempts to inflict bodily harm upon another.
Minn. Stat. § 609.2242, subd. 1 (2000). Domestic assault is a gross misdemeanor if in the previous five years the defendant has been convicted of a qualified domestic-violence-related offense. Minn. Stat. § 609.2242, subd. 2 (2000).
It is uncontested that Kebaso was convicted of a domestic-violence-related offense within the five years preceding the present charge, and the state conceded at trial that there is no evidence that Kebaso intentionally inflicted or attempted to inflict bodily harm to Kefa in the incident that is the subject of this appeal. Thus, the only issue is whether Kebaso intended to cause Kefa to fear immediate bodily harm or death.
The record shows that (1) Kefa called 911; (2) as they stood outside the door, the officers heard a woman yell the words “kill me” and “knife” from inside the apartment where they found Kefa; (3) Kefa was visibly upset when the officers arrived; and (4) Kefa told the officers, “That’s the knife that he [Kebaso] was going to use to kill me” when the meat cleaver was discovered. In addition, Officer Swenson testified that Kefa reported to him that Kebaso was going to use the cleaver to harm her; Kebaso told police officers that Kefa called 911 because she needed someone to protect her. We therefore conclude that the evidence is sufficient to support the conviction.
Kebaso argues, and the state concedes, that because his two gross-misdemeanor convictions arose out of the same behavioral incident, one of the sentences must be vacated; however, neither Kebaso nor the state suggests which. Minn. Stat. § 609.035, subd. 1 (2000), provides:
[I]f 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.
Thus, if a defendant commits multiple offenses against the same victim during a single behavioral incident, the defendant may be sentenced for only one of those offenses. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). Any multiple sentences, including concurrent sentences, are barred if the statute applies. State v. Boley, 299 N.W.2d 924, 925 (Minn. 1980).
Because Kebaso and the state agree that his convictions of domestic assault and interference with an emergency call arose out of a single behavioral incident, we remand to the district court with instructions to vacate one of the two sentences.
Kebaso also argues that this court must remand his case because the district court failed to make written findings of fact as required by Minn. R. Crim. P. 26.01, subd. 2. The Minnesota Rules of Criminal Procedure provide that:
[i]n a case tried without a jury, the court, within 7 days after the completion of the trial, shall make a general finding of guilty, not guilty * * *. The court, within 7 days after the general finding in felony and gross misdemeanor cases, shall in addition specifically find the essential facts in writing on the record.
Minn. R. Crim. P. 26.01, subd. 2. The purpose of written findings “is to aid the appellate court in its review of [a] conviction resulting from a nonjury trial.” State v. Scarver, 458 N.W.2d 167, 168 (Minn. App. 1990). Because the district court failed to comply with rule 26.01, we remand for specific written findings of the essential facts supporting Kebaso’s gross-misdemeanor convictions. See State v. Taylor, 427 N.W.2d 1, 5 (Minn. App. 1988) (holding that evidence supported conviction but remanding for district court to make written findings in accordance with rule 26.01), review denied (Minn. Sept. 28, 1988).
Affirmed in part and remanded.
ROBERT H. SCHUMACHER, Judge (concurring in part, dissenting in part)
I concur with the majority opinion's affirmance of the conviction but write separately to express my disagreement with the part of the opinion remanding this case for specific written findings on Kebaso's gross-misdemeanor convictions. The district court at the sentencing hearing stated:
It is very clear that you [Kebaso] went after your ex-wife with a meat cleaver in front of your own son, which I find to be reprehensible behavior.
Not only in terms of what you did to * * * your ex-wife, but what you did to put your own child in fear.
The district court’s statement clearly supports its finding that Kebaso is guilty of domestic assault. See generally Minn. R. Crim. P. 26.01, subd. 2 (providing that if factual finding is omitted, finding consistent with general finding of guilt shall be inferred). And the majority opinion affirms Kebaso's conviction. As the majority points out, the rule requires findings in order to assist appellate courts in their review. Because we have concluded there is sufficient evidence to support the conviction, it is unnecessary to remand for written findings. In the interest of judicial economy I would simply vacate the conviction of interference with an emergency call. The state agrees that one of the two convictions should be vacated.
We do not consider Kefa’s written statement to the police to be substantive evidence of Kebaso’s guilt because the evidence was submitted by the state for impeachment purposes. A witness’s prior inconsistent statement admitted for impeachment purposes is generally not admissible as substantive evidence. State v. McDonough, 631 N.W.2d 373, 388 (Minn. 2001).