This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Stevens Carey Hopson,



Filed March 9, 2004


Kalitowski, Judge


Hennepin County District Court

File No. 02039062


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


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


John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            A jury found appellant guilty of second-degree intentional murder, in violation of Minn. Stat. § 609.19, subd. 1(1) (2002).  The district court sentenced appellant to a prison term of 360 months, an upward departure from the 306-month presumptive sentence.  Appellant challenges his conviction and sentence, arguing that the district court erred in refusing to instruct the jury on the lesser-included offense of first-degree manslaughter and in imposing an upward departure from the presumptive sentence.  We affirm.



            The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  The focus of the analysis is on whether the refusal resulted in error.  State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).  “The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.”  Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted).

Here, appellant requested a jury instruction on first-degree manslaughter.  The district court must instruct the jury on a requested offense if the defendant establishes that the lesser offense is included in the greater charge and the evidence provides a rational basis for acquitting the defendant of the charged offense and convicting him of the lesser-included offense.   Stiles v. State, 664 N.W.2d 315, 319 (Minn. 2003).

            Every lesser degree of murder is intended by the statute to be characterized as an included offense.  State v. Leinweber, 303 Minn. 414, 421, 228 N.W.2d 120, 125 (1975).  Thus, we need only determine whether the evidence provides a rational basis for acquitting appellant of second-degree intentional murder and convicting him of first-degree manslaughter.  “In determining whether a rational basis exists to acquit on the greater offense and convict on the lesser, the district court is not obliged to credit the defendant’s version of events.”  State v. Bahri, 514 N.W.2d 580, 583 (Minn. App. 1994) (citation omitted), review denied (Minn. June 15, 1994).

A person is guilty of first-degree manslaughter if he “intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances.”  Minn. Stat. § 609.20(1) (2002).  The first element of the heat-of-passion defense is subjective:  whether the killing was actually committed in the heat of passion.  State v. Buchanan, 431 N.W.2d 542, 549 (Minn. 1988).  The defendant’s emotional state at the time of the killing is of primary importance in making this determination.  State v. Boyce, 284 Minn. 242, 254-55, 170 N.W.2d 104, 112 (1969).  In determining whether the district court erred in denying the instruction, we look for a heat of passion that clouds a defendant’s reason and weakens his willpower.  Id. at 254, 170 N.W.2d at 112.

Appellant testified that he was afraid when the victim Daniel Morrison was arguing with him.  While passion may be caused by fear or terror, standing alone those emotions are insufficient to mitigate murder to manslaughter.  Buchanan, 431 N.W.2d at 549.  Although appellant testified that Morrison previously threatened him with a gun, appellant also admitted that he never reported this incident to the police or mentioned it to the arresting officers.  Appellant also testified that he shot Morrison because he believed that Morrison was reaching for a gun.  But witnesses testified that Morrison’s hands were visible during the argument and he never reached for a gun.  And “the district court is not obliged to credit the defendant’s version of events” when determining whether a lesser-included offense instruction is required.  Bahri, 514 N.W.2d at 583.

More importantly, appellant’s actions indicate he did not kill Morrison in the heat of passion.  A defendant’s behavior before, during, and after the crime is relevant to whether the crime was committed in the heat of passion.  See State v. Stewart, 624 N.W.2d 585, 591 (Minn. 2001).  Appellant testified that when he shot Morrison, he was trying to shoot him in the shoulder because he was not trying to kill him, but only wanted to hurt him.  This testimony indicates that appellant was able to think rationally at the time of the shooting.  And because appellant testified that he had “never dealt with guns before,” it is unlikely that he would have been able to fire four rounds out of a pump-style, sawed-off, 16-gauge shotgun while “under the influence of an uncontrollable fear of death or great bodily harm.”  Boyce, 284 Minn. at 257, 170 N.W.2d at 114.  Also, the time that it would take to fire a total of four shots at Morrison is inconsistent with someone who is acting in the heat of passion.  We thus conclude that appellant does not meet the subjective test of first-degree manslaughter.

We also conclude that appellant fails the objective provocation test.  The adequacy of the provocation is judged from the perspective of a person of ordinary self-control under like circumstances.  State v. Buntrock, 560 N.W.2d 383, 387 (Minn. 1997).  On appeal, we look to the record as a whole to make these determinations.  State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994).

Here, appellant and Morrison had an ongoing hostile relationship and were loudly exchanging vulgarities in an argument immediately before the shooting.  In State v. Peou, the defendant testified that the victim grabbed a knife during an argument, and he believed that the victim was going to stab him.  579 N.W.2d 471, 474 (Minn. 1998).  The defendant then took the knife from the victim and stabbed him and the victim’s wife to death.  Id.  In upholding the district court’s decision denying appellant an instruction on first-degree manslaughter, the court held that the threats exchanged between the defendant and victim “are not of a type likely to provoke murder.”  Id. at 476.  Here, there is no evidence that Morrison either brandished a weapon or threatened appellant on the night of the shooting.  Although appellant testified that he saw Morrison reach for a gun, this testimony conflicts with the testimony of other witnesses.  Thus, we conclude that the argument between appellant and Morrison is not of a type likely to provoke murder and, therefore, appellant does not meet the objective test.


            The decision to depart from the presumptive sentence 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).  But “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).  “When a district court departs, it must articulate substantial and compelling reasons justifying the departure.”  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).

Substantial or compelling circumstances are those that make the facts of a particular case either more or less serious than a typical case involving the same crime.  State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992).  The Minnesota Sentencing Guidelines list aggravating factors to aid in determining whether to depart from a presumptive sentence.  These factors include whether the victim was particularly vulnerable due to reduced physical capacity and whether the victim was treated with particular cruelty.  Minn. Sent. Guidelines II.D(2)(b).(1)-(2).  The presence of one aggravating factor is sufficient to justify a double durational departure.  State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985). 

Putting a large number of people in jeopardy is an aggravating factor supporting a sentence departure.  See State v. Mitjans, 408 N.W.2d 824, 834 (Minn. 1987) (upholding upward durational departure where appellant fired two shots at the victim in a public bar); State v. Anderson, 463 N.W.2d 551, 553 (Minn. App. 1990) (upholding upward durational departure where appellant fired 13 shots in mixed residential and commercial area and injured two out of the six people in the immediate area, one of them seriously and permanently), review denied (Minn. Jan. 14, 1991).  Additionally, committing a violent crime in the presence of children is “a particularly outrageous act,” because even if the children are not the victims of the crime, they are “victims in another sense.”  State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982).

In sentencing appellant to an upward departure from the presumptive sentence, the court explained:

[B]ased on the fact that this was more egregious than a normal Second Degree Murder involving four shots with a shotgun in a public place where children and other people were present, involving a weapon that by its very nature scatters pellets.  Clearly the windows of a car – neighboring car were taken out by shots fired by you indicating the danger that was present in the area.

You continued to fire the gun as the victim went into the street, and as cars were passing by, with total disregard for public safety.  The fact that you continued to shoot at a person who was running away, continued to shoot after the person apologized by your own testimony, makes this a more egregious crime than the usual Second Degree Intentional Murder.  You continued to shoot after you knew the victim was hurt and bleeding.  And that flies in the face of your claim that all you intended to do was hurt him.


By shooting at Morrison after he was injured and bleeding, appellant treated him with particular cruelty.  And because Morrison was injured, he was particularly vulnerable when appellant fired the second, third, and fourth shots.  The time and place of the crime placed a number of people, including children, in jeopardy and fear.  Because the district court stated several aggravating factors justifying the upward departure on the record, we conclude that the district court did not abuse its discretion in sentencing appellant.