This opinion will be unpublished and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,
Monty William Lyons,
Filed February 17, 2004
St. Louis County District Court
File No. K6-01-600237
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Alan L. Mitchell, St. Louis County Attorney, Vernon D. Swanum, Assistant St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Schumacher, Judge.
On appeal from a conviction of and sentence for first-degree manslaughter, appellant argues that (1) the state failed to prove that he did not act in self-defense or in defense of others; and (2) that the district court erred by imposing a twenty-five percent upward departure. We affirm.
Appellant Monty William Lyons was convicted of first-degree manslaughter for his involvement in the death of Dale Isaacson. Isaacson died on March 12, 2001, in Duluth, Minnesota, seven days after being punched and otherwise assaulted by appellant. A year or two before the March 5, 2001 incident, appellant had an intimate relationship with a woman named Sheila Ritzman. Both Ritzman and appellant testified that they dated for a few months. Approximately six months before his death, Isaacson and Ritzman then developed an intimate relationship. Ritzman testified that just prior to Isaacson’s death, appellant and Ritzman became intimate again for a brief period of time. During his testimony, appellant denied that they were intimate, but stated that a couple months before the March 5 incident Ritzman told him that Isaacson had “slapped her up” and had “hurt her.”
At the time of his death, Isaacson was 29 years old, approximately 5’11” tall, and weighed approximately 140 pounds. Joanne Johnson, Isaacson’s mother, testified that Isaacson suffered from cerebral palsy since the time of his birth. She also stated that Isaacson experienced some physical and mental limitations due to his cerebral palsy. Johnson testified that Isaacson’s right arm and right hand suffered from diminished strength. She also testified that Isaacson tried several times to obtain his driver’s license but was unsuccessful, and she financially supported Isaacson because he was unable to manage his money. Isaacson’s debilitating illness and reduced physical capacity were agreed on and are not at issue.
At the time of the incident, Ritzman lived in Duluth. In the beginning of March 2001, appellant asked Ritzman to take care of his dog because it was pregnant and expecting puppies. Ritzman took care of the dog until its puppies were born in her apartment on March 5, 2001. According to Ritzman, both Isaacson and appellant stayed at her apartment on the evening of March 4, 2001. Ritzman testified the birth of the puppies was an exciting event for both her and Isaacson. Ritzman also testified that appellant called her shortly after the puppies were born. Ritzman told appellant about the birth of the puppies and appellant was also excited. By the time the puppies were born, Ritzman and Isaacson each had two or three vodka drinks. She and Isaacson celebrated the birth of the puppies by having more drinks.
Appellant testified that he finished work on March 5 at approximately 7:30 p.m. Appellant stated that he got a ride from a co-worker, stopped to buy a 12-pack of beer, picked up his overnight bag from his co-worker’s apartment, and was dropped off at Ritzman’s apartment. He arrived at Ritzman’s apartment at about 8:00 p.m. Ritzman, Isaacson, and appellant spent the evening celebrating and drinking. Appellant drank approximately 8 of the 12 beers he brought, and was intoxicated. Isaacson and Ritzman were also intoxicated.
Ritzman testified that late in the evening, Isaacson became angry with her because she was flirting with appellant. Isaacson accused Ritzman of having sex with appellant. Ritzman denied this and told Isaacson to “shut up and go to sleep.” Ritzman testified that Isaacson responded by hitting her with his fist on the right side of her head and neck three or four times. Sergeant Tim Jazdzewski of the Duluth Police Department testified that Ritzman initially claimed to have been hit by Isaacson just twice. Sergeant Jazdzewski testified that he examined Ritzman in the early morning of March 6, 2001, and observed no injuries to her head and face. On March 7, 2001, he again examined Ritzman and observed a slight bruise on the right side of her neck. Photographs taken soon after the incident depict slight bruising on the right side of Ritzman’s neck.
Ritzman testified that she had great difficulty in remembering the exact sequence of events because everything happened so quickly. She stated that at the time Isaacson hit her, she and Isaacson were in one bedroom and appellant was in the other bedroom with the puppies. Ritzman testified that after appellant saw Isaacson hitting her, he pulled Isaacson away from her. Ritzman stated that Isaacson said, “F--- you, keep out of this” to appellant. Appellant then punched Isaacson “maybe four times” and “[g]rabbed him by the shirt and shook him and threw him down” onto a futon that was on the floor. Ritzman testified that during the incident, appellant ripped Isaacson’s shirt from his body, shook Isaacson, and told Isaacson that he was a woman-beater. Isaacson tried to fight back by swinging at appellant and then stopped. Ritzman testified that appellant continued to hit Isaacson while Isaacson was on the futon and that appellant was enraged.
Ritzman testified that appellant continued to assault Isaacson after Isaacson was unconscious. She stated that she tried to pull appellant off Isaacson and screamed to appellant that he was killing Isaacson. Ritzman testified that she screamed louder, “I think you are killing him,” at which point appellant stopped assaulting Isaacson. She told appellant to call the police and get an ambulance. Ritzman stated that there was a lot of blood in Isaacson’s mouth. She stated that she tried to clear his airway and in doing so, got blood on her hands, which she wiped on her jeans. The photographs and videotape taken of Ritzman shortly after the incident show blood on Ritzman’s jeans.
Appellant acknowledged that he outweighed Isaacson by approximately 65 pounds. Appellant testified that he was in the bathroom when he heard several “thumps” or “bangs.” He stated that when he returned to the bedroom he saw Isaacson punch Ritzman one time in the head. Appellant testified that he asked Isaacson why he was hitting Ritzman. He stated that Isaacson responded by telling him to “f--k off and stay out of it.” Appellant testified that he grabbed Isaacson’s shoulder and pulled him away from Ritzman. Appellant stated that at that point Isaacson turned around and hit him in the cheek. Appellant testified that he reacted by hitting Isaacson in the head four times in rapid succession. The photographs and videotape of appellant’s face taken shortly after the incident depict no apparent bruises on his cheek. Appellant acknowledged that he was angry but stated that he was not “enraged.” At that point Isaacson fell to the floor and appellant yelled at him to get up. Appellant testified that he did not touch Isaacson after he fell except to check his pulse. Appellant testified that he was shocked and concerned, and noticed no blood on Isaacson when he checked his pulse.
Appellant called 911 at approximately 11:20 p.m. The 911 tape was transcribed and played in its entirety to the jury. When asked what the problem was, appellant said, “Let’s just say I think we got us a corpse here.” He then told the operator that Isaacson was beating up his ex-girlfriend and that he and Isaacson “got into it.” He stated that he “f--ked [Isaacson] up real good,” that he “busted his f--king a-- up,” that Isaacson was “beating up on her and [he] pounded his a--.” He also stated that Isaacson was “bleeding all over the place.” Appellant told the operator that he “went off on his a--” and that he “f--ked him up pretty good.” He also told the operator that he “[did not] want to go down on a f--king murder charge on this dumbs--t.”
Appellant testified that when he made the 911 phone call he was frightened and panicked. Appellant believed that Isaacson might die although he did not think he had hit Isaacson that hard. When asked about the remarks he made to the 911 operator, appellant stated that he said those things because he was scared and trying to rationalize what happened. Appellant and the 911 phone transcript both indicate that appellant did not tell the operator that Isaacson had hit him.
Albert Ryttie, who lived in the apartment adjacent to Ritzman’s and shared a common wall, testified that on the evening of March 5, 2001, at 11:20 p.m., he heard “five to six very loud thumps.” Immediately following the thumps, he heard a very loud “whoop.” He testified that he went to the bathroom that shared the common wall with Ritzman and heard only a male voice speaking.
Police and paramedics arrived at Ritzman’s apartment within minutes. Officer Mark Frederickson testified that after he knocked on the apartment door several times, appellant answered the door. Officer Frederickson and Officer Ryan Morris then entered the apartment. Officer Frederickson testified that appellant told him that “[Isaacson] was hitting [Ritzman], so [he] punched [Isaacson] a few times.” Officer Frederickson immediately went into the back bedroom and saw Isaacson lying on his back on the futon. He stated that Isaacson was wearing only blue jeans, was not breathing, and did not have a pulse. Frederickson stated that he observed no obvious injuries other than some redness under Isaacson’s right arm. The paramedics were allowed into the apartment once it was secured and Isaacson was transported to the hospital.
Appellant was under the supervision of Officer Morris for the next several hours. Officer Morris testified that appellant was visibly under the influence of alcohol because he smelled of alcohol, his speech was slurred, and his eyes were glossy, bloodshot, and watery. Appellant asked Officer Morris about Isaacson’s medical condition and made several statements about the night’s events. Appellant told Officer Morris that he “beat the shit out of [Isaacson],” “pummeled his a--,” “beat him up,” “hit him four to five times,” and “may have hit him too hard.” Appellant told Officer Morris that he hit Isaacson because Isaacson had hit Ritzman and that he did not like wife beaters. Appellant did not tell Officer Morris that Isaacson had hit him.
Sergeant Michael Tusken also testified that appellant made statements to him while at the scene of the incident. Tusken stated that appellant told him that he “hit [Isaacson] a few too many times too hard.” Appellant also told Tusken that he “guess[ed] that he had cerebral palsy goes against me.” Tusken testified that appellant was intoxicated. Tusken testified that Isaacson was not bleeding and did not appear to have any injuries that were typical of an assault.
Isaacson was disconnected from life support on March 12, 2002. Dr. Kent Froberg, St. Louis County Deputy Medical Examiner, reviewed Isaacson’s medical records and determined that when Isaacson was admitted to the hospital, he was completely unresponsive. Dr. Froberg performed the autopsy on Isaacson. He testified that Isaacson had “fairly superficial injuries to his external body.” Dr. Froberg also testified that Isaacson had bruising and hemorrhage on the left side of his neck, some small abrasions on his forehead, a couple of small bruises on the right side of his chest, and a few small abrasions and bruises on his legs. He stated that the bruises appeared to be fairly recent. Dr. Froberg testified that Isaacson’s cause of death was from a “closed head injury with diffuse subarachnoid hemorrhage.” He also testified that a single blow to the head could have caused the subarachnoid hemorrhage, but that the hemorrhage was “very significant” and he did not believe that it was caused by one blow because there were several areas of external trauma including the left side of the neck, left ear, and left side of the head. Dr. Froberg also found evidence of a subdural hemorrhage during the autopsy, which is typically caused from trauma. He testified that the injuries to Isaacson’s brain were caused by “blunt trauma, either from severe shaking, that is acceleration/deceleration sort of things, much like shaken baby syndrome, and/or multiple blunt-force trauma to the side of the head.”
Dr. Lindsey Thomas, an expert in pathology, testified for the defense. Dr. Thomas testified that she reviewed the medical records of Isaacson, the autopsy report of Dr. Froberg, and the photographs admitted into evidence. She agreed with Dr. Froberg that Isaacson died from a closed-head injury and that there was subarachnoid hemorrhage present. However, Dr. Thomas did not agree that the subarachnoid hemorrhage was extensive and instead concluded that the hemorrhage was moderate. She agreed with Dr. Froberg that Isaacson had been hit three or four times on the left side of his head and neck. But Dr. Thomas concluded that the type of injury sustained by Isaacson could have been the result of one “unlucky punch.” She stated that there was no evidence that Isaacson had been severely beaten or suffered “substantial bodily harm” other than the “unlucky punch” Isaacson sustained. She stated that at least one of the blows to his head inflicted substantial bodily harm but was uncertain as to which one caused the subarachnoid hemorrhage. Dr. Thomas agreed with Dr. Froberg that there was evidence of subdural hemorrhage.
Appellant was charged with second-degree felony murder. At trial, the district court instructed the jury on the elements of second-degree felony murder and its predicate offense, third-degree assault. The court also instructed the jury on the lesser-included offense of first-degree manslaughter and its predicate offense, fifth-degree assault. Pursuant to appellant’s motion, the district court instructed the jury on both self-defense, and defense of another. The jury found appellant guilty of the lesser-included offense of first-degree manslaughter.
At sentencing, the district court denied appellant’s motion for either a durational or dispositional departure. The court found that Isaacson was particularly vulnerable because of his cerebral palsy and intoxication. The district court also found that the statements made by appellant to law enforcement constituted extreme disregard for Isaacson’s life and health. The district court subsequently imposed a twenty-five percent upward durational departure, from 86 months to 107.5 months. This appeal follows.
Appellant argues that the state failed to prove that he did not act in self-defense or in defense of another. We disagree. Where a claim of insufficiency of the evidence is made, the reviewing court’s function is limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). This 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). The jury is in the best position to evaluate the evidence and its verdict is entitled to deference. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).
The right to act in self-defense is codified in Minn. Stat. § 609.06 (2002) and Minn. Stat. § 609.065 (2002). Section 609.06 provides, in pertinent part that
reasonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist:
. . .
(3) when used by any person in resisting or aiding another to resist an offense against the person.
Section 609.065, entitled “justifiable taking of life,” provides that one may intentionally take the life of another “when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.”
Three conditions must occur to excuse or justify the use of deadly force under both Minn. Stat. § 609.06 and Minn. Stat. § 609.065:
(1) The killing must
have been done in the belief that it was necessary to avert death or grievous
(2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances.
(3) The defendant’s election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.
State v. Richardson, 670 N.W.2d 267, 277-78 (Minn. 2003). “[J]ustification for homicide in defense of another parallels defense of self.” State v. Granroth, 294 Minn. 491, 492, 200 N.W.2d 397, 399 n. 2 (1972). When self-defense is raised, the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980). To do so, the state must disprove at least one of the elements of self-defense. Id.
As to appellant, the state showed a lack of all three elements described in Boyce. The jury could have reasonably concluded that appellant’s conduct was not done in the belief that it was necessary to avert death or grievous bodily harm. Appellant argues that his conduct was justified because immediately after he intervened to protect Ritzman, Isaacson turned around and hit him. Appellant argues that he used reasonable force because he punched Isaacson only with his bare hand. But appellant hit Isaacson four times, and according to Ritzman, Isaacson was unconscious when he suffered some of the blows. Ritzman testified that she had to scream at appellant and try to pull appellant off Isaacson before appellant would stop assaulting Isaacson. The photographs, videotapes, and testimony of both Dr. Froberg and Dr. Thomas show that Isaacson’s body endured numerous bruises and abrasions. The jury could reasonably find that even if force was initially necessary, appellant delivered deadly blows well after any force was needed to avert any danger to himself.
The jury also could have reasonably concluded that the other elements do not exist because appellant continued to use force well after the time Isaacson posed any danger to Ritzman. As stated above, appellant argues that he was justified in hitting Isaacson because Isaacson turned around and hit him after he intervened to protect Ritzman. What the record shows is that appellant testified that Isaacson hit him just once, and that was in the cheek. Appellant did not report to the 911 operator or to law-enforcement officers that Isaacson struck him. The photographs and videotape of appellant’s face taken shortly after the incident depict no apparent bruises on his face. Isaacson was substantially smaller than appellant. On the other hand, appellant chose to hit Isaacson several times, past any point where force was needed to subdue an intoxicated person suffering from cerebral palsy. Appellant’s judgment of the gravity of the peril he faced was unreasonable when appellant continued to use force after Isaacson ceased to pose any danger. Appellant’s justification was Ritzman’s testimony that Isaacson had “slapped her up” and had “hurt her.” But appellant continued to assault Isaacson after Isaacson was incapacitated. The jury could have concluded that appellant’s actions were not what a reasonable person would have done in light of the danger. The record supports the jury’s rejection of appellant’s self-defense claim.
Appellant argues that his actions were justified because Isaacson would have continued to assault Ritzman if he had not intervened, i.e., “the defense of others claim.” As to Ritzman, while appellant may have been justified when he initially intervened to protect Ritzman, the record does not support his defense-of-another claim. The state needed to disprove only one element, and we conclude the state proved that both Ritzman and appellant did not face death or grievous bodily harm, and proved that appellant’s use of force was far more than necessary to protect Ritzman. We reject appellant’s defense-of-another claim.
2. Upward Durational Departure
Appellant next challenges the upward durational departure from the sentencing guidelines. The district court sentenced appellant to 107.5 months in prison, which is a twenty-five percent upward departure from the 86-month presumptive sentence.
Upward departure is within the discretion of the district court only if substantial and compelling aggravating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989); State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). Substantial and compelling circumstances arise when the “defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime.” State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984). If the record supports the district court’s findings of substantial and compelling circumstances, a reviewing court will uphold the sentence unless it strongly feels that the sentence is disproportionate to the offense. State v. Schroeder, 401 N.W.2d 671, 674 (Minn. App. 1987), review denied (Minn. Apr. 23, 1987). “When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure.” State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). “If no reasons supporting the departure are stated on the record, the departure is not allowed; if reasons are stated, but are improper or inadequate, this court will affirm the departure nonetheless if the record contains valid and sufficient reasons to support the departure.” State v. Sanchez-Sanchez, 654 N.W.2d 690, 694 (Minn. App. 2002).
The district court’s basis for the upward departure was as follows:
1. The victim was especially vulnerable because of cerebral palsy. This condition gave the victim limited use of his right side, including his right arm. The cerebral palsy condition was known to [appellant]. The victim’s disability prevented him from being able to fully defend himself against the actions of [appellant] and made this offense more serious than other similar offenses.
2. [Appellant] made a number of statements to the police immediately following this incident (which are in the trial transcript and on file herein). The statements evidence an extreme disregard for the life and health of the victim.
3. The victim was extremely intoxicated. This intoxication was known to [appellant]. The intoxication likely increased the balance problems the victim already suffered due to his cerebral palsy and made the victim more vulnerable.
We recognize appellant’s argument that the district court erred by imposing a twenty-five percent upward departure and conclude that this issue is close. But we agree with the district court’s finding that Isaacson was particularly vulnerable because he suffered from cerebral palsy, and affirm on that basis. We reject the other listed reasons for the departure. The vulnerability of a victim due to age, infirmity, or reduced physical or mental capacity may justify an upward sentencing departure. State v. Robinson, 388 N.W.2d 43, 46 (Minn. App. 1986), review denied (Minn. July 31, 1986). Vulnerability must be a substantial factor in accomplishing the crime. State v. Gardner, 328 N.W.2d 159, 162 (Minn. 1983). Substantial aggravating circumstances are those that distinguish the case from a “typical” case. Robinson, 388 N.W.2d at 46. A victim’s vulnerability due to intoxication may be considered a reason for departure. Ture v. State, 353 N.W.2d 518, 522 (Minn. 1984); State v. Gettel, 404 N.W.2d 902, 906 (Minn. App. 1987), review denied (June 26, 1987). Similarly, a victim’s vulnerability due to cerebral palsy can be considered a factor in an upward departure. See State v. Graham, 410 N.W.2d 395, 397 (Minn. App. 1987) (concluding that victim’s muscular dystrophy made him particularly vulnerable, supporting double departure), review denied (Minn. Sept. 30, 1987).
The record indicates that Isaacson suffered from several physical and mental limitations due to his cerebral palsy. Appellant was aware of Isaacson’s cerebral palsy when he told Sergeant Tusken that he “guess[ed] that he had cerebral palsy goes against me.” Isaacson’s alcohol concentration at the time of his death was .20. Because appellant drank alcohol with Isaacson for more than three hours on the night of Isaacson’s death, appellant was aware of Isaacson’s intoxication. We note that Isaacson, the victim, is not blameless in this case. Although he suffered from a recognizable and debilitating illness, Isaacson became voluntarily intoxicated to the tune of an alcohol concentration of .20 and assaulted another vulnerable person (a woman with whom he had an intimate relationship). The victim then, not thinking very clearly, insulted appellant, a much larger and stronger young man who was Ritzman’s ex-boyfriend and who was trying to stop Isaacson from beating on Ritzman. A victim under a disability such as cerebral palsy cannot voluntarily place himself in this type of situation and then assume that because he has cerebral palsy he is awarded immunity from his actions and that no one will get upset over his rudeness. The jury, aware of these particular circumstances, rejected the state’s charge of second-degree felony murder and instead found a less serious degree of homicide in its first-degree manslaughter verdict. While the issue of the upward departure is close, we conclude that appellant’s conduct in beating on Isaacson long after any need to defend Ritzman or himself had disappeared, constituted gratuitous cruelty to a vulnerable person. We affirm the district court’s modest upward departure on the grounds that Isaacson was vulnerable and that appellant’s actions had elements of unnecessary force and gratuitous cruelty.
We next examine the district court’s finding that the statements appellant made to law enforcement officers after the incident constituted “extreme disregard for the life and health of the victim.” We reject that finding as a basis for the upward departure. A sentencing court may not use as aggravating factors the elements of the offense. State v. Ahern, 349 N.W.2d 838, 841 (Minn. App. 1984); see, e.g., State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983) (stating the defendant’s position of authority was not a valid departure ground for an offense that requires the actor to be in a position of authority).
First-degree manslaughter is defined as:
Caus[ing] the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force or violence that death of or great bodily harm to any person was reasonably foreseeable, and murder in the first or second degree was not committed thereby …
Minn. Stat. § 609.20 (2) (2002).
The verdict of first-degree manslaughter requires that the person accused used such force or violence to cause the death of the victim. Logically, and by definition, this element implies a disregard for the victim’s life and health, and, thus, is already built into the definition of the crime. Also, it is speculative to use a defendant’s statements after the crime has been completed as a basis for an upward departure. Statements after the fact, although not totally without value, are always colored by the fact that they “are after the fact” and, as such, usually signal the beginning of the defendant’s internal rationalization, which may or may not comport with reality. For instance, an angry tirade by a defendant to a living victim just before a fight starts could signal present mood and present intent, and might be of value in establishing intent if the victim dies. On the other hand, appellant’s gratuitous statements here after the fact do not form a basis for an upward departure, but rather form a basis for a confession, if a confession was needed.
We conclude the sole basis for affirming the upward departure is appellant’s gratuitous cruelty to a particularly vulnerable victim.
ROBERT H. SCHUMACHER, judge (concurring specially)
I concur in the result only.
 Isaacson’s blood-alcohol level was .20 at the time he was admitted to the hospital. Ritzman’s blood-alcohol level was .26 shortly after the incident.