This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





James (NMN) Foreman,



Filed October 14, 2003

Affirmed in part, reversed in part, and remanded

Gordon W. Shumaker, Judge


Hennepin County District Court

File No. 02040772




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


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)



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



U N P U B L I S H E D   O P I N I O N



Appellant James Foreman argues that the evidence is insufficient to support his conviction of second-degree assault and that the district court abused its discretion when it imposed a 90-month sentence because the upward departure is unsupported by aggravating circumstances and exceeds the statutory maximum sentence.  Because we conclude the evidence is sufficient to uphold conviction of second-degree assault, but that the district court abused its sentencing discretion, we affirm the conviction but reverse the sentence and remand for resentencing. 



            On May 22, 2002, police responded to a 911 call from the residence of appellant James Foreman and his wife, B.A.F.  When police arrived, B.A.F. alleged that Foreman had grabbed a rifle, pointed it at B.A.F.’s head, and said, “I’m gonna kill you.”  A rifle was recovered from the residence with “one round locked and loaded in the chamber ready to fire with the safety off.”  Foreman was charged with second-degree assault under Minn. Stat. § 609.222, subd. 1 (2002).  A few weeks later, B.A.F. recanted her allegations.  Then, before trial, B.A.F. recanted her recantation.  At trial B.A.F. testified that she decided to say what “really happened,” stating,

Because I kept being in some fear . . . .  [Foreman] kept threatening me a lot of times and I just got tired of it.  I just got really, really tired of him threatening me, telling me that he was going to do this to me, telling me that he was going to do that to me, and I just got really, really afraid.


After a jury trial, Foreman was convicted of second-degree assault.  The court sentenced Foreman to 90 months in prison.  On appeal, Foreman challenges the sufficiency of the evidence and the duration of the sentence.



1.         Sufficiency of the Evidence


Foreman argues that the evidence is insufficient to support his conviction of second-degree assault because the only evidence in the case is B.A.F.’s testimony and it lacks credibility because of B.A.F.’s recantations.  Furthermore, there was no physical evidence to corroborate B.A.F.’s allegations, and there was only generalized expert testimony on domestic abuse.  Therefore, he contends that his conviction should be overturned. 

“[T]he standard for overturning a conviction for insufficiency of the evidence is a high one.”  State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).  In considering an insufficiency-of-evidence claim,

our review is . . . limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.


State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume that 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).  “We 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 that a defendant was proven guilty of the offense charged.” State v. Alton, 432 N.W.2d 754, 756 (Minn. 1998) (citation omitted). 

a.         Credibility

“It is well established that a conviction can rest upon the testimony of a single credible witness.”  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (citations omitted).  We leave credibility determinations to the fact-finders because they are “in a superior position to assess the credibility of witnesses.”  In re Welfare of L.A.F.,554 N.W.2d 393, 396 (Minn. 1996) (citation omitted).  “Even inconsistencies in the state’s case will not require a reversal of the . . . verdict.”  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (citation omitted).  The weight and credibility of individual witnesses are for the jury to determine.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). 

The evidence to support a conviction of second-degree assault requires an assault of another with a dangerous weapon.  Minn. Stat. § 609.222, subd. 1.  Here, B.A.F. testified that on May 22, 2002, she and Foreman were having an argument when Foreman said, “[T]hat if he can’t have me, nobody else can have me,” and that Foreman was calling her names and “took [a] gun, . . . and he had the gun pointed at . . . [her] head” and said, “I will kill you.”  B.A.F. also testified that she recanted her allegation because “[Foreman] called [her] at least eleven or twelve times” a day and told her to say, “that it did not happen.” 

This court defers to the jury’s credibility determinations, and a single witness’s testimony is sufficient to uphold a conviction.  The record shows that B.A.F. gave firsthand testimony that Foreman assaulted her with a deadly weapon.  That evidence, if believed, is sufficient to support a conviction for second-degree assault.

b.         Physical Evidence and Expert Testimony

Because B.A.F.’s testimony is sufficient to uphold the conviction without the corroboration by physical evidence or expert testimony, we need not reach Foreman’s arguments regarding the absence of physical evidence or the sufficiency of the expert testimony.

2.         Sentencing

            Foreman next argues that the district court abused its discretion by imposing a 90-month sentence because the sentence exceeded the statutory maximum sentence and the sentence was an upward durational departure without aggravating factors to support the departure.

The statutory maximum sentence for second-degree assault with a dangerous weapon is 84 months.  See Minn. Stat. § 609.222, subd. 1 (providing that “whoever assaults another with a dangerous weapon may be sentenced to imprisonment for not more than seven years [84 months]).”  The district court imposed a 90-month sentence, which is greater than the statutory maximum, and thus the sentence is beyond the range of permissible departure.  The district court abused its discretion in sentencing Foreman.  When a district court abuses its discretion, we remand to the district court for resentencing.  State v. Warren, 592 N.W.2d 440, 452 (Minn. 1999). 

The state concedes that the district court’s sentence exceeds the statutory maximum, but argues that this court should not reduce Foreman’s sentence to the presumptive sentence of 60 months because “the district court clearly intended to depart from the presumptive sentence and there are substantial and compelling reasons supporting such a departure” in the record.

            Substantial and compelling circumstances must be present in the record to justify departures from the applicable presumptive sentences in the Minnesota Sentencing Guidelines.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  When substantial and compelling circumstances are present, a district court has discretion to depart from the presumptive guidelines and will not be reversed on appeal absent an abuse of discretion.  Id.  

The general rule is that when aggravating factors justify an upward departure, “the upper limit will be double the presumptive sentence length.”  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).  Where aggravating factors exist, the only limit on the sentence imposed for the offense is the statutory maximum provided by the legislature.  State v. Olson, 436 N.W.2d 817, 821 (Minn. App. 1989), review denied, (Minn. Apr. 26, 1989).

The district court is in the best position to assess the need for such a departure.  State v. Frey, 340 N.W.2d 346, 347-48 (Minn. App. 1983), review denied (Minn. Mar. 15, 1984).  The Minnesota Sentencing Guidelines provide a nonexclusive list of factors the district court may use as reasons for departure.  Minn. Sent. Guidelines II.D.2.; State v. Case, 350 N.W.2d 473, 475 (Minn. App. 1984).  But if there are reasons in the record for departure not relied upon by the district court, the reviewing court may consider these reasons on review.  State v. Pearson, 479 N.W.2d 401, 404 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). 

Here, the district court provided the following rationale at the sentencing hearing in support of its departure stating

that this is a second or subsequent offense involving the use of a weapon, as [Foreman] just acknowledged [the] prior offense before involving the use of a gun.   . . . under all the circumstances, given [Foreman’s] record—given primarily what [Foreman] just said, honestly—which I think is a way of denying the offense, I’m not going to go to the minimum…[but instead] impose and commit you to the Commissioner of Corrections for a period of 90 months.  I went above the minimum . . . because I believe that your denials are not true.


The reasons provided by the court are not sufficient to depart from the sentencing guidelines.  This court may review the record and look beyond the reasons given by a sentencing court in imposing a departure.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.  State v. Thieman, 439 N.W.2d 1, 7 (Minn. 1989).

Thus, we next determine whether there are factors in the record to support an upward durational departure.  Williams, 361 N.W.2d at 844.  Here, the record provides substantial and compelling reasons that justify departure, including: (1) that B.A.F. was vulnerable within the meaning of the Minnesota Sentencing Guidelines, see State v. Elvin, 481 N.W.2d 571, 576 (Minn. App. 1992) (affirming an upward durational departure when victim is also a victim of domestic abuse who had continued her relationship with offender following abuse); (2) the psychological trauma suffered by B.A.F.; and (3) the particular cruelty of the assault.  Minn. Sent. Guidelines II.D.2.b.(1), (2); State v. Bingham, 406 N.W.2d 567, 570 (Minn. App. 1987) (providing psychological and emotional injury may justify upward departure.)

            Thus we conclude that the record does support a durational departure based on the vulnerability of the victim.  See Minn. Sent. Guidelines II D.2.b.(1).  While it is clear that the district court intended to depart from the presumptive sentence, and it was within its discretion to depart based on the record, it is unclear what sentence the district court would have imposed had it not imposed the 90-month sentence. 

Because the district court is in the best position to assess the justification for departure, and because there are aggravating factors in the record, the sentence is reversed and the matter is remanded to the district court for resentencing.

Affirmed in part, reversed in part, and remanded.