This opinion will be unpublished and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,
Bruce Ray Fairbanks,
Filed August 12, 2003
Affirmed in part, reversed in part, and remanded
Anoka County District Court
File No. KX007845
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
On stipulated facts, the district court found Bruce Fairbanks guilty of first-degree assault of a correctional employee and kidnapping. In this appeal, Fairbanks challenges, first, the sufficiency of the evidence to prove the intent element of the assault charge and, second, the imposition of the maximum statutory sentence for the kidnapping conviction. Because the evidence amply supports the intent element, we affirm the assault conviction. Whether the multiple sentencing departure on the kidnapping conviction is commensurate with the gravity of the crime under the reasoning of Neal v. State, 658 N.W.2d 536 (Minn. 2003), cannot be reviewed without a determination of Fairbanks’s criminal-history score and his presumptive guideline sentence. We remand for that determination and, if appropriate, resentencing consistent with Neal.
F A C T S
The events underlying Bruce Fairbanks’s assault and kidnapping charges occurred at the Lino Lakes correctional facility, a medium security prison which houses adult male inmates. Fairbanks was an inmate at the facility in July 2000, assigned to the Kellogg living unit. J.O. was employed in the Kellogg living unit as a corrections officer. She worked the night shift from 11:00 p.m. to 7:00 a.m.
On July 19, 2000, J.O. conducted a head count of the Kellogg unit at 2:30 a.m., reported the full seventy-five-inmate count to the watch commander, and went to a kitchen area behind her desk to prepare her lunch. A security video camera in that area visually recorded J.O. approaching a microwave oven. The video shows Fairbanks quickly coming up behind J.O. and delivering an arching blow to her head, and J.O. falling to the floor. Fairbanks is 6’1” tall and weighs more than 240 pounds. J.O. is 5’2” tall and weighs about 130 pounds. The blow to J.O.’s head was of sufficient force to cause profuse bleeding and loss of consciousness.
Fairbanks dragged J.O. down a flight of stairs, removed her keys, and returned to the top of the stairs to retrieve J.O.’s handheld radio. He then dragged her a short distance down a hallway out of view of the security camera for about a minute and a half. J.O. came back into the camera view as she staggered to a wall to brace herself. Fairbanks then guided J.O. to a laundry tub and handed her a towel, which was used to soak up some of the blood on her head and face.
A watch sergeant located in a building 200 yards from the Kellogg living unit heard a door open and saw Fairbanks in the entryway with his hands around J.O.’s head and neck. J.O. was covered in blood and appeared stunned. Fairbanks pulled J.O. down the hallway toward the building’s control room. The watch sergeant activated an emergency response system.
When prison staff responded to the watch sergeant’s emergency alert they saw Fairbanks holding J.O. with his left hand and brandishing a disposable razor in his right hand. The razor had a corner of its plastic housing removed to expose more of the blade. Fairbanks held the razor to various parts of J.O.’s upper body and demanded that the prison staff open the control room and provide him with a car. Fairbanks threatened to cut J.O.’s throat and kill her if he was not released. When J.O. told him that they would not hurt him if he gave himself up, he turned to the control room and said, “I’m gonna f---ing cut her up.” Fairbanks told J.O. to tell the prison staff to open the door or “me and her are both gonna die.” Fairbanks yelled that he knew J.O. was married and had a child.
After fifteen minutes of attempting to bargain with Fairbanks, several of the staff rushed Fairbanks, pulled J.O. out of his grasp and ran with her down a hallway. The staff then subdued and handcuffed Fairbanks. During that process they removed a set of keys from Fairbanks’s pants and a page from an atlas showing major highways in south central Canada and north central United States.
An ambulance transported J.O. to a hospital. She was diagnosed with a concussion, a 3.0 centimeter facial laceration that extended into her mouth, a 4.0 centimeter laceration in the inside upper lip, smaller lacerations on her scalp and face, and bruises on her hand. Her right upper and lower jaw was numb and she had lost function of the lip muscle. In follow-up assessments J.O.’s doctor evaluated the muscle and nerve damage and observed continuous numbness and a loss of symmetry in lip animation. J.O.’s doctor assessed a three percent permanent partial disability in the facial nerve damage that caused a lack of sensation in the right side of the lip and an overall disability of six percent.
The stipulated record included testimony that J.O. “still has numbness on the right side of her face; that she understands she’ll have that for the rest of her life. She has difficulty sipping from a straw or closing her mouth in that manner. She has speech impairment, difficulty with her speech[, a]nd she has also noted memory loss since the time of this concussion.”
On the submitted record of forty-five exhibits and the stipulated testimony, the district court found Fairbanks guilty of first-degree assault against a correctional employee and kidnapping. The court determined that Fairbanks is a dangerous offender within the meaning of Minn. Stat. § 609.1095, subd. 2 (1998), and sentenced him to 240 months for the assault and a concurrent 480 months for the kidnapping. The concurrent sentences are consecutive to the 134-month sentence for first-degree criminal sexual conduct that Fairbanks was serving at Lino Lakes when the current assault and kidnapping occurred.
Fairbanks appeals (1) the sufficiency of evidence to prove the requisite intent for the assault charge and (2) the propriety of the 480-month sentence for kidnapping.
D E C I S I O N
Fairbanks argues his conviction for assault against a correctional employee should be reversed because the evidence does not support all of the requisite statutory elements. First-degree assault against a correctional employee is defined as an assault involving the use or attempted use of “deadly force” against the employee while the employee is engaged in the performance of a duty imposed by law, policy, or rule. Minn. Stat. § 609.221, subd. 2(a) (1998).
Deadly force is defined as force “which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm.” Minn. Stat. § 609.066, subd. 1 (1998). Great bodily harm is an “injury which creates a high probability of death, or which causes serious permanent disfigurement,” or the permanent or protracted loss or impairment of the function of any bodily member or organ, “or other serious bodily harm.” Minn. Stat. § 609.02, subd. 8 (1998).
Fairbanks does not dispute that J.O. was engaged in the performance of a duty imposed by law, policy, or rule or that J.O. suffered great bodily harm. He disputes that the state provided sufficient evidence to support the court’s finding that he used force by which he either intended to, or should reasonably have known would, create a substantial risk of causing great bodily harm.
Evidence is sufficient to support an element of a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a factfinder could reasonably conclude that the element has been proved beyond a reasonable doubt. State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). Fairbanks does not dispute that the act of striking J.O. was a voluntary act. Whether it was with the purpose of causing great bodily harm, or he should reasonably have known that it would, is a fact question. See State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993) (determining that whether defendant could reasonably foresee victim’s death during robbery formed question of fact for jury). Purpose is connected to a state of mind and generally proved circumstantially through evidence from which the factfinder can draw reasonable inferences. State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). The factfinder may infer that a person intends the natural and probable consequences of his actions, and a defendant’s testimony on intent or purpose is not binding if the acts demonstrate a contrary intent. Id. at 179.
In concluding that Fairbanks acted with the purpose of causing great bodily harm or should reasonably have known that his actions would cause great bodily harm, the district court found that Fairbanks “quickly came up behind [J.O.] and with an arching blow to the head * * * knocked [J.O.] down.” The court found that the blow to J.O.’s head “was of sufficient force to immediately render [J.O.] unconscious.” The court noted the disparity between Fairbanks’s physical frame (6’1” tall and weighing more than 240 pounds) and J.O.’s physical frame (5’2” tall and weighing about 130 pounds). The court also listed the injuries J.O. suffered, including a severe concussion, multiple facial lacerations (one of which cut completely through her cheek), loss of memory, lip scars, permanent numbness of her lip, and speech impairment.
The record supports the district court’s determination that Fairbanks either acted with the purpose of causing great bodily harm or that he knew or should reasonably have known the force he used would create a substantial risk of causing great bodily harm. The videotape graphically affirms the court’s determination. The manner in which Fairbanks approached J.O., the method of arching the forceful blow, the immediate effect, and the severity of the resulting injuries are ample evidence from which the court could reasonably infer that Fairbanks had the purpose or at least knew or should have known that his actions would create a substantial risk of causing great bodily harm.
We also reject the sufficiency-of-the-evidence argument made in Fairbanks’s pro se brief. To the degree he argues the same deficiency advanced in the primary brief, the same reasons apply. His additional argument, that J.O. was not released in an unsafe place, is not relevant because that element was not part of the charged offense or a basis for the sentencing determination.
The district court sentenced Fairbanks underMinn. Stat. § 609.1095, subd. 2 (2000), which provides for an increased sentence for a dangerous offender who is at least eighteen years old when committing the crime, is being sentenced for a violent crime that is a felony, and has two or more prior convictions for violent crimes. See Minn. Stat. 609.1095, subd. 2. The dangerous-offender statute authorizes the court to sentence up to the statutory maximum sentence. Id.
The court specified on the record that Fairbanks was more than eighteen years old, had previously been convicted of three violent crimes and was a danger to public safety because of his past criminal behavior and because the present offense involves aggravating factors that would justify a durational departure under the sentencing guidelines. Minn. Stat. 609.1095, subd. (1), (2) (2000). Fairbanks does not dispute that he meets the statutory criteria for sentencing as a dangerous offender.
On the conviction for assault of a correctional employee, the court sentenced Fairbanks to 240 months. This sentence is a double durational departure from the presumptive sentence of 120 months for a criminal-history score of one. The criminal-history score was computed with one custody status point and no felony points for past felonies apparently because Fairbanks’s assault sentence will be served consecutive to the criminal-sexual-conduct sentence he was serving at the time of the assault. See Minn. Sent. Guidelines Grid (2000); see also Minn. Sent. Guidelines II.F (stating that a criminal-history score of one is appropriate in calculating a defendant’s sentence for an offense committed while serving an executed prison sentence when the district court imposes a presumptive consecutive sentence). Fairbanks does not dispute that the double durational departure of 120 months from the presumptive sentence was within the district court’s discretion on the assault conviction.
Fairbanks contends, however, that the district court’s sentence of 480 months for the kidnapping conviction is excessive and unreasonable and must be reduced. The record is insufficient for us to effectively review this part of Fairbanks’s appeal. To assist counsel and the district court on remand, we address the record’s deficiencies.
In his initial brief, Fairbanks argued that the district court erred by not applying a criminal-history score of one in computing Fairbanks’s sentence for kidnapping. The sentencing worksheet computed Fairbanks’s criminal-history score as six, one custody status point plus five felony points. Kidnapping with great bodily harm is a severity level eight offense. This combination yields a presumptive sentence of 158 months. Fairbanks contends that because this offense is also consecutive to the criminal-sexual-conduct sentence he was serving at the time of the assault and kidnapping, his criminal-history score should have been computed as one, which would yield a presumptive sentence of 98 months.
The state apparently contended at sentencing that because the kidnapping was concurrent to the assault on a correctional employee, the five felony points should be included in the criminal-history score to yield a presumptive sentence of 158 months. It is less clear that the state takes this position on appeal; in its brief it suggests that the presumptive sentence on the kidnapping is 98 months. Fairbanks on the other hand, in his reply brief, now appears to indicate that the presumptive sentence is 158 months. One point is consistent: the issue was not fully argued or determined at sentencing.
After the court imposed Fairbanks’s statutory-maximum sentence, but before his appeal, the Supreme Court decided Neal v. State, 658 N.W.2d 536, 546 (Minn. 2003). In Neal, the court analyzed when district courts may impose the statutory maximum sentence for a crime under the dangerous-offender statute. The court recognized that the dangerous-offender statute authorizes district courts to impose a departure, up to the statutory maximum sentence, on a dangerous offender without the presence of severe aggravating circumstances which are typically required for an upward durational departure. Id. at 545. Despite this authorization, the supreme court warned that when severe aggravating factors are not present courts should use caution when imposing sentences that approach or reach the statutory maximum sentence. Neal, 658 N.W.2d at 546. The court stated that caution is necessary because the dangerous-offender statute contravenes the purpose of the sentencing guidelines, which is to impose sentences proportionate to the severity of the offense, by authorizing sentences that may be disproportionate to the severity of the offense of convictions. Id.
The circumstances in the Neal kidnapping are in some ways comparable to the kidnapping in this case. Neal threatened a store employee with a gun, moved her around within the building where the store was located, tied her wrists, covered her head, and slapped her. Fairbanks’s assault is more egregious than Neal’s in that he seriously and permanently injured J.O. And the district court specifically found that Fairbanks’s actions in the course of the assault and kidnapping constituted aggravating circumstances. But the kidnapping, similar to that in Neal, involved a relatively short time period.
To determine whether the defendant’s sentence was unfair in Neal, the supreme court considered the presumptive sentence for the defendant’s kidnapping, the sentence he received, whether severe aggravating circumstances existed which justified the defendant’s statutory maximum 480-month sentence, and how the sentence was imposed. Neal, 658 N.W.2d at 547-48. The court determined that the 480-month kidnapping sentence was not commensurate with sentences on similar facts or with the gravity of the crime and remanded to resentence more closely to a double departure. Id. at 548-49. Because the record is deficient on Fairbanks’s presumptive sentence, it is unclear what multiple the 480-month sentence represents. If Fairbanks’s presumptive sentence is 158 months, the 480-month sentence is slightly greater than a triple departure. If his presumptive sentence is 98 months, the 480-month sentence is almost a quintuple departure.
The district court made careful findings on the criteria required to sentence Fairbanks under the dangerous-offender statute. These findings include aggravating factors of particular vulnerability and particular cruelty. See Minn. Sent. Guidelines II.D.2.b.(1), (2). The presumptive sentence was not critical to the computation of Fairbanks’s dangerous-offender sentence at the time of sentencing; consequently, the district court did not specifically determine Fairbanks’s presumptive sentence.
Because Neal was decided during the pendency of this appeal, the district court did not have the benefit of the Neal analysis to determine the appropriate sentence for the kidnapping conviction. Furthermore, we are unable reasonably to determine whether the 480-month sentence is excessive because the presumptive sentence has not been established, because we do not know whether the court used the 158-month presumptive sentence in the sentencing worksheet as a starting point, and because we cannot determine what Fairbanks or the state contend to be the correct presumptive sentence.
For these reasons we remand to the district court to allow reconsideration of Fairbanks’s sentence in light of Neal and to establish Fairbanks’s presumptive sentence on the kidnapping conviction.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.