This opinion will be unpublished and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,
Ronnie (NMN) Ward,
Filed October 21, 2003
Hennepin County District Court
File No. 02030812
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent); and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Wright, Presiding Judge; Harten, Judge; and Anderson, Judge.
G. BARRY ANDERSON, Judge
Following his conviction for second-degree assault, appellant challenges the 12-month upward durational departure from the presumptive 36-month sentence. Appellant argues that the district court erred in finding that multiple people were put in danger by the assault because appellant checked to make sure that there was no one else in the car before he fired and because the street on which the car was driving was only “potentially busy.” Appellant also argues that the district court erred in finding that there was particular cruelty in the assault because he fired at the victim’s car and hit the victim with two shots although the shots did not inflict serious injury on the victim. We affirm.
Following a court trial based on stipulated facts, appellant Ronnie Ward was acquitted of attempted murder in the second degree and convicted of assault in the second degree in violation of Minn. Stat. § 609.222, subd. 1 (2002). Ward was sentenced to 48 months in prison, which was a 12-month upward durational departure from a presumptive 36-month sentence.
The victim, Linroy Jones, and Ward had a history of animosity. In October 2001 Jones and his girlfriend, Tracy Crawford, were the victims of a burglary and an attempted robbery perpetrated by Ward’s stepson, other members of Ward’s family, and possibly Ward as well. On both of these occasions, Crawford tried to use a firearm to defend herself. The first time she was victimized, she attempted to shoot her assailants but was unsuccessful because her gun jammed. During the second incident, Crawford threatened her assailants with a handgun. Jones and Ward were also known to each other because Jones had sold marijuana to Ward in the past.
In April 2002, Jones was driving his “distinctive older Cadillac” down 6th Street North, in the vicinity of 33rd Avenue North in Minneapolis. As he was driving, Jones saw Ward standing on the left sidewalk in the middle of the block. Jones hunched down in his seat as he drove down the street so that only his head was visible to Ward. Ward then drew a .40 caliber Smith and Wesson semi-automatic pistol and fired a shot through the windshield that struck the steering wheel and Jones’ hand before ricocheting and coming to rest inside the front passenger seat. The bullet was headed directly for Jones and would have struck his head or body but for the ricochet.
Jones kept driving. After Jones had passed Ward, Ward fired another shot that passed through the rear driver’s side door, the driver’s seat, and struck Jones’ back but only caused minor injuries to Jones because the force of the bullet had dissipated by the time of impact. Jones continued driving until he was stopped a number of blocks later by the police. Ward testified that he was merely trying to scare Jones by shooting at his car.
The incident occurred in a residential neighborhood in which neighbors were at home at the time. Adults and children were outside playing and talking immediately before and after the shooting. Ward was in the area with friends and family, but he told them to stand back, away from the street, before he opened fire. Ward testified that he looked to make sure that there were no passengers in Jones’ car before opening fire.
After the conviction, the state moved for a double upward departure and Ward moved for a downward departure. The district court granted a 12-month upward departure for two reasons. First, “[T]he shooting took place in the middle of a potentially busy residential street where others were placed in danger by the shooting.” Second, Jones was, in fact, struck by the shots. The district court found the assault to be “far more serious than a typical 2nd degree assault” and stated that it was “miraculous” that Jones was not seriously hurt or killed. This appeal followed.
Ward challenges the district court’s findings justifying the upward durational departure. Generally, in determining whether to depart in sentencing, a district court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984). But if there are “substantial and compelling circumstances,” the standard of review of a departure is abuse of discretion. Minn. Sent. Guidelines II.D; Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).
The substantial and compelling circumstances must arise from the facts underlying the conviction and not from any other incidents. State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983). Where the district court states reasons for the departure on the record, the appellate court examines “the record to determine if the reasons given justify the departure;” “if the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.” Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).
The sentencing guidelines are presumed to be appropriate and are to be utilized unless there are “substantial and compelling circumstances” justifying deviation from the guidelines. Minn. Sent. Guidelines II.D. Case law has established that placing others in danger justifies an upward departure. In State v. Doughman, an upward departure was affirmed where the crime was one of revenge in which the safety of others was disregarded and “the offense was committed in a particularly serious way, which represented a greater than normal danger to the safety of other people.” 404 N.W.2d 867, 872 (Minn. App. 1987) (citation omitted) review denied (Minn. June 26, 1987). Further, upward departures have been upheld when others have been put in fear of harm. State v. Mitjans, 408 N.W.2d 824, 834 (Minn. 1987) (citing State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985); State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981)).
Assault is defined as, “(1) An act done with intent to cause fear in another of immediate bodily harm or death; or (2) [t]he intentional infliction of or attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd. 10 (2002). Thus, an assault is complete “when one engages in an ‘act’ with the intent ‘to cause fear in another of immediate bodily harm or death.’” State v. Hough, 585 N.W.2d 393, 395 (Minn. 1998) (quoting Minn. Stat. § 609.02, subd. 10(1) (1996)). Second-degree assault is assaulting “another with a dangerous weapon.” Minn. Stat. § 609.222, subd. 1 (2002).
Placing others at risk is an aggravating factor that justifies an upward departure. Mitjans, 408 N.W.2d at 834. The district court concluded that Ward placed others at risk when he discharged his firearm. Ward fired two shots at Jones as Jones was driving on a “potentially busy residential street.” Jones could easily have been seriously injured and lost control of his vehicle with unknown consequences.
Further, appellant could have missed Jones’ car entirely and hit someone inside a house. The crime was committed in a particularly serious manner because of the discharge of a firearm in a public street with innocent bystanders in the area and because the gun was fired at the driver of a moving vehicle; it does not take a great leap of imagination to realize the damage potential from a wounded or dead driver. See Doughman, 404 N.W.2d at 872. Accordingly, we conclude that the district court properly considered this an aggravating factor sufficient to justify the less-than-double upward durational departure.
In addition to placing others at risk, the district court also concluded that this crime was more serious than usual because it was particularly cruel. The sentencing guidelines state that a non-exclusive factor justifying an upward durational departure is if the victim was treated with “particular cruelty for which the individual offender should be held responsible.” Minn. Sent. Guidelines II.D.2.b.(2). Here, Ward fired two shots. The first one struck Jones’ hand and missed his head only through sheer luck. The second shot was fired after Jones had already passed Ward and struck Jones in the back. As noted in Hough, a second-degree assault would have occurred even if Ward had not discharged the firearm at all. 585 N.W.2d at 395. The fact that the firearm was discharged raises the severity of the crime by at least some degree; the fact that the firearm was discharged twice and that Jones was struck twice, including once in the back, further supports our conclusion that the discharge of the firearm makes this crime more serious than the typical second-degree assault and particularly cruel.
In this case, Ward fired two shots at a moving vehicle in the middle of a public street in a residential neighborhood. This presented a serious danger to the driver of the vehicle and to everyone else in the neighborhood. The district court did not abuse its discretion in finding substantial and compelling reasons to depart upward from the sentencing guidelines.
 The conviction at issue here followed a second trial. Ward’s earlier trial ended in a mistrial when the jury was unable to reach a unanimous verdict.