This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Kenneth Michael Jordan,



Filed September 23, 2003

Affirmed in part, reversed in part, and remanded

Willis, Judge


Ramsey County District Court

File No. K192769


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)


John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal following his convictions of controlled-substance crime and assault, appellant argues that (1) the evidence is insufficient to support the assault conviction; (2) in sentencing him for both convictions, the district court abused its discretion by refusing to depart downward from the sentencing guidelines; and (3) his sentence for the assault conviction is illegal.  We (1) affirm the assault conviction; (2) affirm the sentence for the conviction of controlled-substance crime; and (3) reverse the sentence for the assault conviction because we conclude that the assault was part of the same behavioral incident as the controlled-substance crime.


On February 27, 2002, St. Paul Police Officer Daniel Zebro, working as part of an undercover narcotics unit, arranged to buy half an ounce of cocaine for $500 from appellant Kenneth Michael Jordan.  Jordan agreed to meet Officer Zebro in the parking lot of a fast-food restaurant in St. Paul on the evening of February 27 to complete the transaction.

            Before Jordan arrived, Officer Zebro parked the pickup truck that he was driving in a space on the northern edge of the parking lot.  To the east of Officer Zebro’s truck, several police officers were waiting in a van to arrest Jordan after the transaction was completed and Officer Zebro had given a prearranged arrest signal.  The officers in the van were wearing either police uniforms or jackets indicating that they were police officers.

            Jordan arrived at approximately 6:45 p.m. and parked his car alongside Officer Zebro’s truck so that the driver’s-side doors of the two vehicles were facing each other.  Officer Zebro got into Jordan’s car and handed him an amount of cash, and Jordan handed Officer Zebro a bag of what was later determined to be cocaine.  Jordan then counted the money and told Officer Zebro that it was $100 short.  Telling Jordan that he would go to the truck to get more money, Officer Zebro got out of Jordan’s car and, when he reached the truck, gave the prearranged arrest signal.

            Several police officers quickly got out of the van and ran toward Jordan’s car.  The officers had their weapons drawn and ordered Jordan to get out of the car.  Two of the officers in the van, Officer Jeffrey Whitbeck and Officer Jay David Thompson, took up positions near the left-front side of Jordan’s car.  Jordan drove his car forward “a couple feet,” then stopped briefly before making a sharp left turn and accelerating rapidly in the direction of an exit on the eastern side of the parking lot.  Though the exit that Jordan was traveling toward was “the most direct exit” from the parking lot, Officer Whitbeck, Officer Thompson, and Officer Thompson’s canine partner were in the path of Jordan’s car.  Fearing that he would be pinned between Jordan’s car and Officer Zebro’s parked truck, Officer Whitbeck jumped backward and was struck in the hand by Jordan’s car.  Seeing that Officer Thompson and his dog were still in the path of the car, Officer Whitbeck fired two shots into Jordan’s car.  The car continued traveling toward the exit, and Officer Thompson grabbed the dog and jumped out of the way to avoid the car.

            Jordan sped out of the parking lot but a short distance away was unable to negotiate a turn and collided with a guardrail, causing a flat tire.  Jordan was arrested soon thereafter and told police, “I didn’t mean to hurt anybody.”

            The state charged Jordan with second-degree controlled-substance crime, in violation of Minn. Stat. § 152.022, subd. 1(1) (Supp. 2001), and second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2000).  Jordan pleaded guilty to the controlled-substance-crime charge and, following a bench trial, was convicted of the assault charge.  The district court sentenced Jordan to serve concurrent sentences of 48 months for the controlled-substance-crime conviction and 33 months for the assault conviction.  This appeal follows.


            On appeal, Jordan argues that (1) the evidence in the record is insufficient to support the conviction of assault, (2) the district court abused its discretion by denying his motion for a downward departure from the sentencing guidelines, and (3) his sentence on the assault conviction should be reversed because the assault was part of the same behavioral incident as the controlled-substance crime.


In considering a claim of insufficient evidence, this court’s review is limited to a painstaking review of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume that the district court 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 fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

The state’s use of circumstantial evidence to prove intent on the part of a defendant does not mean that the evidence of intent is insufficient.  Intent is a “subjective state of mind usually established only by reasonable inference from surrounding circumstances.”  State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975).  Although a conviction based on circumstantial evidence “merits stricter scrutiny,” circumstantial evidence is entitled to the same weight as any other evidence as long as the circumstances proved are consistent with the hypothesis that the defendant is guilty and inconsistent with any rational hypothesis except that of guilt.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). 

An “assault” is (1) an act done with intent to cause fear in another of immediate bodily harm or death or (2) the intentional infliction of or attempt to inflict bodily harm on another.  Minn. Stat. § 609.02, subd. 10 (2000).  The element of intent is satisfied when the actor either (1) “has a purpose to do the thing or cause the result specified” or (2) “believes that the act performed by the actor, if successful, will cause” the specified result.  Id., subd. 9(3) (2000).

Here, Officer Zebro testified at trial that the officers who ran toward Jordan’s car yelled “police” and “get out of the car.”  Officer Zebro said he could hear these commands clearly and that at the time the officers were yelling, the driver’s-side window of Jordan’s car was down and the car’s passengers’-side front door was open.  Officer Zebro testified that he could then hear Jordan “revving his motor up * * * as if he was pushing the accelerator to the floor.”  Officer Zebro also testified that after the officers yelled for Jordan to get out of the car, Jordan “gunned” the engine.

Officer Whitbeck testified that as he approached the rear of Officer Zebro’s truck, he saw Jordan’s car drive forward “a couple feet” and then stop.  Officer Whitbeck said that he then made eye contact with Jordan, shouted “police,” and saw the vehicle make “a sharp left turn towards” him.  As he jumped backward, Officer Whitbeck testified, the car struck his hand.  Officer Whitbeck also stated that there was nothing preventing Jordan from driving directly south, where no one was standing.  But Officer Whitbeck testified that he and Officer Thompson were standing between Jordan’s car and the east-side exit, which was the closest exit from the parking lot.  Also at trial, Sergeant Richard Klein, a “crash reconstructionist” for the St. Paul Police Department, testified that he had examined the evidence in the parking lot on February 27, reconstructed the incident in which Officer Whitbeck was struck by Jordan’s car, and concluded that there was nothing to prevent Jordan from driving south to avoid the officers and making a wide left turn to leave from the east-side exit.

On appeal, Jordan argues that his conduct is more consistent with reckless driving than with assault.  But the evidence shows that Jordan drove recklessly to force the officers approaching his car to back away.  The testimony of Officers Zebro and Whitbeck indicates that (1) the officers ordered Jordan out of the car; (2) Officer Whitbeck made eye contact with Jordan; (3) Jordan turned in the direction of the officers and the exit beyond them; and (4) Jordan then accelerated rapidly.  On this evidence, the fact-finder could reasonably infer that Jordan intended to cause fear in the officers of imminent bodily harm.  Thus, the record contains sufficient evidence proving that Jordan committed assault, and we affirm his conviction.


Jordan next argues that in sentencing him for the controlled-substance-crime and assault convictions, the district court abused its discretion by refusing to depart downward from the sentencing guidelines.  The decision to depart from the sentencing guidelines rests within the district 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).  A “sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).

Jordan argues that the district court abused its discretion by not departing downward from the sentencing guidelines because the record showed that Jordan (1) had only one earlier conviction, (2) had suffered neurological damage at some point, and (3) was amenable to probation.  But Jordan cites no authority establishing that a failure to order a downward departure in light of such evidence is an abuse of discretion.  See State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (stating that “it would be a rare case which would warrant reversal of the refusal to depart”).  Thus, we affirm the district court’s refusal to depart from the sentencing guidelines.


            Finally, Jordan argues that his sentence for the assault conviction is barred by Minn. Stat. § 609.035, subd. 1 (2000), which provides that “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.”  The supreme court has interpreted Minn. Stat. § 609.035, subd. 1, to mean that “an offender who commits multiple offenses as part of a single behavioral incident may be punished for only one of the several offenses.”  State v. McAdoo, 330 N.W.2d 104, 107 (Minn. 1983).  When the multiple offenses are intentional crimes, this court considers “the factors of time and place as well as whether the offenses were motivated by a desire to obtain a single criminal objective” in deciding whether the offenses were part of a single behavioral incident.  State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994).  Furthermore, the supreme court has held that multiple sentences “‘may not be used for two offenses if the defendant[ ] substantially contemporaneously committed the second offense in order to avoid apprehension for the first offense.’”  Id. (quoting State v. Gibson, 478 N.W.2d 496, 497 (Minn. 1991)).

            Here, the assault occurred immediately after the controlled-substance crime.  Furthermore, Jordan committed the assault as he was attempting to drive toward the nearest exit from the parking lot.  Thus, the evidence shows that Jordan committed the assault to avoid apprehension for the controlled-substance crime.

            The state relies on State v. Thomas, 352 N.W.2d 526 (Minn. App. 1984), review denied (Minn. Oct. 11, 1984).  There, an undercover Minnesota Bureau of Criminal Apprehension (BCA) agent attempted to purchase cocaine from the defendant.  After the sale was completed, the BCA agent revealed his identity and attempted to arrest the defendant, who grabbed the agent’s pistol, and a struggle ensued.  “[D]uring the struggle [the defendant] had gained sufficient control of the gun to be able to point it at [the agent] six different times.”  Id. at 528.  The defendant in Thomas was eventually subdued, arrested, and convicted of controlled-substance crime and second-degree assault.  This court concluded that Minn. Stat. § 609.035, subd. 1, did not bar the sentence for the assault conviction because the defendant’s “actions were clearly not motivated by an attempt to escape or destroy the evidence.”  Id. at 529.  Rather, the Thomas court concluded that the defendant’s conduct “was an attempt at escalating the encounter to a more serious level by harming the BCA agents.”  Id.  Thomas is distinguishable because there the defendant aggressively chose to take the BCA agent’s weapon and to overpower him instead of trying to escape, while Jordan accelerated his car rapidly to cause the police officers to clear the way to the nearest exit.  The evidence here does not indicate that Jordan was attempting to escalate the encounter to a more serious level as much as it shows that he was trying to avoid apprehension.  Thus, Thomas is unhelpful.  We affirm the judgment of conviction of assault but reverse the sentence and remand to the district court to vacate Jordan’s sentence for the assault conviction.

            Affirmed in part, reversed in part, and remanded.