This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Donald J. Urbanski,
Filed July 6, 2004
Affirmed in part, reversed in part, and remanded
Carver County District Court
File No. K9-02-1215
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael A. Fahey, Carver County Attorney, Peter Ivy, Assistant County Attorney, Carver County Justice Center, 604 East Fourth Street, Chaska, MN 55318 (for respondent)
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Minge, Judge.
Appellant challenges his conviction of and sentence for attempted first-degree murder, arguing that (1) the district court judge exhibited bias toward him and therefore failed to objectively evaluate the sufficiency of the state’s evidence; (2) there was insufficient evidence to support the conviction; and (3) the sentence was erroneously calculated. Because we conclude that the district court judge did not exhibit bias toward appellant, that the evidence is sufficient to support the conviction, but that the court did err in calculating the presumptive sentence, we affirm in part, reverse the sentence, and remand.
In June 2002, appellant Donald Joseph Urbanski and his girlfriend, Leslie Dick, were residing in separate halfway houses. Dick’s halfway house allowed her to leave on weekends if she checked back in on Sunday. Appellant and Dick left the facilities for a weekend that turned into a period of prolonged and excessive alcohol consumption and use of crack cocaine. Ultimately, they drove to a gas station in Chaska. When appellant began to treat Dick abusively, the station manager offered Dick refuge in the station, kept appellant out, and called the police. Before law enforcement arrived, appellant took a liquor bottle from the vehicle and walked into a wooded area behind the station.
Sergeant Julie Boden and Deputy Kyle Perlich were the first officers on the scene. Boden approached appellant identifying herself and stating that she needed to talk with him. Appellant ignored her and then broke off a three-foot, 1.35 pound branch from a nearby tree. Appellant walked towards Boden and Perlich with the branch in one hand and the liquor bottle in the other. Both officers drew their guns, pointed them at appellant, and yelled at appellant to stop and drop the branch. Appellant did not comply. Appellant told the officers to “go ahead and shoot” him and continued to drink from the bottle. Boden testified that appellant then ran at them and yelled, “I am going to rip your f---ing heads off.” Appellant also yelled, “You are going [to] have to kill me. I’m going to kill you,” and “[s]hoot me mother f---er, kill me now.” Boden removed her mace and sprayed it at appellant, but he was out of range. Appellant then yelled at Boden, “I can’t hurt you, but I’ll f---in’ kill him.” Appellant then charged at Perlich, holding the branch with both hands like a baseball bat. Boden and Perlich retreated. Boden then yelled for appellant to drop the branch and talk to them. Boden and Perlich reholstered their guns and removed their nightsticks. Appellant again began to walk toward Perlich with the branch raised and yelling.
Officers Trent Wurtz and Lee Meyer then arrived at the scene. Wurtz ran in behind appellant and yelled a command at him. Appellant turned and approached Wurtz, holding the branch with both hands. Wurtz drew his gun, pointed it at appellant, walked backwards into a retaining wall, and fell. Appellant stood over Wurtz, lifted the tree branch over his head, and swung it, striking Wurtz on the side of the head. The blow caused Wurtz to lose consciousness. As appellant was preparing to swing a second time, Boden fired and shot appellant in the stomach. The shot knocked appellant down and he was arrested.
Appellant was charged with attempted first-degree murder in violation of Minn. Stat. §§ 609.17, .185(a) (4) (2000), first-degree assault against a peace officer in violation of Minn. Stat. § 609.221, subd. 2 (2000), and domestic assault in violation of Minn. Stat. § 609.2242, subd. 2 (2000). In March 2003, the state amended the latter count of the complaint to gross-misdemeanor assault. After a bench trial, the district court found appellant guilty of attempted first-degree murder and gross-misdemeanor assault. In May 2003, the district court followed the recommendation in the presentence investigation and committed appellant for 243 months. This appeal followed.
The first issue is whether the district court judge was biased and as a result denied appellant a fair trial. The bias claim is based on the following statement made by the district court judge at the completion of trial:
I put myself in a position of the officers which again is without their professional training, expertise. It is not totally appropriate but I did it anyway . . . . [I]f you were in fact intending to commit suicide by the assistance of law enforcement and had I been there, you probably would have succeeded.
I would not have utilized the restraint, the professional consideration, that the officers did[.]
At trial, appellant’s counsel neither objected to the district court’s comments nor sought to remove the judge for cause. As a general rule, this court will not decide issues that were not raised before the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But an appellate court has discretion to decide issues that were not raised below when the interests of justice require their consideration and when doing so would not unfairly surprise a party to the appeal. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). Here, because the state had an opportunity to brief this issue and because the alleged misconduct involved the district court itself and had the potential to affect appellant’s right to a fair and impartial trial, we will address this issue in the interests of justice.
“Due process entitles a criminal defendant to an impartial and disinterested tribunal.” McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998) (quotation omitted). “[A] judge must have no actual bias against the defendant.” Id. (quotation omitted). A judge must also avoid both the reality and the appearance of impropriety. See State v. Simmons, 646 N.W.2d 564, 569 (Minn. App. 2002) (citing Minn. Code Jud. Conduct 2A, which states that a judge must “respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”), review denied (Minn. Sept. 17, 2002). The presumption is that the district court executed its duties properly. McKenzie, 583 N.W.2d at 747. When determining whether to vacate a judgment because of judicial impropriety, we must consider “the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process.” Powell v. Anderson, 660 N.W.2d 107, 121 (Minn. 2003) (quotation omitted).
In this case, nothing indicates that the district court judge was biased against appellant during the administration of the trial. In fact, the district court judge stated before trial that he thought the state’s case was “over charged.” This statement indicates that the judge, if anything, was initially biased in favor of appellant. It was only after the admission of all the evidence that the judge found appellant guilty and made the comment at issue. Furthermore, the district court judge’s statement that he would have shot appellant if he were at the scene was not part of the court’s analysis of whether appellant was guilty of intentionally trying to kill Officer Wurtz.
The district court’s thorough findings indicate that it applied proper reasoning and analysis to the case and that it based its conclusions on the evidence presented at trial. This court defers to the fact-finder’s witness credibility and weight-of-testimony determinations. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). Reviewing the trial as a whole, the district court’s finding of guilt was unattributable to the district court judge’s personal sentiments. It appears the judge’s comment was intended to compliment the officers for exercising restraint at the scene, rather than implying a bias against appellant.
The next issue is whether the evidence was sufficient to sustain appellant’s conviction for attempted first-degree murder. We apply the same standard of review to bench trials and jury trials when determining whether the evidence was sufficient to support a conviction. Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999). In considering a sufficiency of the evidence claim, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, viewed in the light most favorable to the conviction, was sufficient to allow the fact-finder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We 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 have reasonably concluded that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
A person is guilty of attempt if he intentionally “does an act which is a substantial step toward, and more than preparation for, the commission of the crime.” Minn. Stat. § 609.17, subd. 1 (2000). A person is guilty of murder in the first degree if he “causes the death of a peace officer . . . with intent to effect the death of that person or another, while the peace officer . . . is engaged in the performance of official duties.” Minn. Stat. § 609.185(4) (2000). The phrase “with intent to” is defined to mean “that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.” Minn. Stat. § 609.02, subd. 9(4) (2000).
Appellant argues that intent to kill was not sufficiently proven here in light of his intoxication. Intent is generally proved circumstantially. State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). Circumstantial evidence is entitled to the same weight as direct evidence. State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000), review denied (Minn. June 13, 2000). Intent may be determined from words, actions, and surrounding circumstances. State v. Boitnott, 443 N.W.2d 527, 531 (Minn. 1989).
Intoxication may be properly considered by the fact-finder in determining intent, but the fact that the defendant had been drinking does not raise the presumption that he was incapable of forming intent. State v. Wahlberg, 296 N.W.2d 408, 416 (Minn. 1980). The burden is on the defendant to show by a preponderance of the evidence that he was too intoxicated to form intent. Id. at 418. And if the record contains evidence that supports the fact-finder’s conclusion on the issue of intoxication, this court will not reverse even if some evidence to the contrary exists. Id. at 416.
The district court in the present case thoroughly considered appellant’s intoxication defense, which is evidenced by its analysis in its findings. In addition, the record reflects that appellant said such things to the officers as “they are not going to take me,” “I’m going to rip your f---ing head off,” and “I’m going to kill you.” The record also reflects that appellant removed a branch from a tree, held it in a threatening manner, aggressively pursued Wurtz, deliberately struck Wurtz on the head, and was about to strike Wurtz a second time. The fact that the first blow rendered Wurtz unconscious shows the force with which appellant swung and the risk of a fatality resulting from the attack. The that fact appellant prepared to strike Wurtz again could reasonably be viewed as evidence of appellant’s determination to cause fatal injuries. Viewing the evidence in the light most favorable to the state, there is sufficient evidence to support the district court’s finding that appellant formed the requisite intent for attempted murder in the first degree.
The final issue is whether the district court erred when it sentenced appellant. Using the Minnesota sentencing guidelines, the district court sentenced appellant to 243 months. However, the sentencing guidelines grid does not cover attempted first-degree murder. Minn. Sent. Guidelines II.G. Under the separate grid for attempted first-degree murder, the presumptive sentence for appellant, who has a criminal history score of six or more, is between 236 and 240 months. Id. The state concedes that this was error and recommends a sentence of 238 months. Because the district court incorrectly relied on the sentencing guidelines grid, the case is remanded for resentencing within the presumptive range of 236 to 240 months.
Affirmed in part, reversed in part, and remanded.
 Appellant argues that if Wurtz were not a police officer, appellant would not have been charged or convicted of attempted first-degree murder. This argument is complete speculation and is without merit. Appellant also argues that the tree branch did not constitute a dangerous weapon. This argument is contrary to Minnesota law. See, e.g., State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983) (stating a three-foot board is a dangerous weapon when used to repeatedly beat victim); State v. Shenton, 22 Minn. 311, 312 (1875) (including large stick in list of dangerous weapons).