This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Lee Rivera,




Filed August 17, 2004

Affirmed in part and remanded in part

Robert H. Schumacher, Judge


Hennepin County District Court

File No. 2095647



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


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


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



            Considered and decided by Schumacher, Presiding Judge; Anderson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Lee Rivera challenges his conviction of second-degree assault, arguing the district court erred in failing to instruct the jury on the lesser-included offense of fifth-degree assault.  In a supplemental brief, Rivera argues the district court erred in imposing a departure from the presumptive sentence.  Additionally, in his pro se supplemental brief, Rivera requests that this court reverse his conviction.  We affirm with regard to the jury instruction and remand for resentencing


Rivera and S.C. began dating in 1999, and Rivera moved into S.C.'s residence in February 2000.  They have two children, ages three and two at the time of trial.  On December 1, 2002, Rivera was scheduled to move out of S.C.'s residence.  According to S.C., during breakfast that morning Rivera asked if he could stay for a few more months.  S.C. declined his request.

After breakfast, S.C. was in the dining room holding one of their children.  The second child was nearby in the living room.  Rivera appeared in the kitchen doorway screaming, "I'm going to kill you"  and began choking S.C. with a metal chain.  While choking S.C., Rivera continued to scream, "I'm going to kill you."  He also said to one of the children, "Say goodbye to your mother, this is the last time you'll ever see her alive."  S.C. testified to becoming very dizzy, nauseated, and sensed that everything was spinning.

Rivera does not deny choking S.C. with a chain.  He said he wanted to talk to S.C. that morning, he was "ashamed" that S.C. wanted him to leave, and then his "whole body [felt] like it left."  During this out-of-body experience, he choked S.C. with a chain, and when he "returned to his body," he let her go.  Rivera did not recall telling the children to say goodbye to their mother and denied ever saying he was going to kill her.  He did recall saying to S.C., "Do you want this to be your end?"

After Rivera released the chain, S.C. tried to get away.  As she tried to get out the front door, Rivera asked if she was going to call the police and wanted to know when he would see his daughters again.  According to S.C., Rivera then wrapped his arm around her neck and threatened to twist off her head.  Rivera denies this second incident.

After S.C. and the children left, Rivera called 911 and reported that he had choked S.C.  The 911 dispatcher asked Rivera, "Did you want to kill her, is that it?  When you assaulted her, did you want to kill her?"  Rivera responded, "Well, that's pretty much what I've been saying, yeah, but I knew I realized that wasn't the right way to go, so."  During this conversation Rivera also said:

One of the kids was in her arms, and I begged her and pled with her to put her down so she wouldn't see what was going on, and she didn't, and I still did, and I stopped because, you know, I (inaudible) so much that there is no way I wanted to do much damage.


A physician diagnosed S.C. with external and internal bruising.  Chain marks remained visible on her neck three to four days after the assault, she lost her voice for approximately one to two days, and all visible bruising disappeared within two weeks.

Rivera was charged with, among other things, one count of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2002).  At trial, Rivera requested the district court to instruct the jury on the lesser-included offense of fifth-degree assault.  The district court denied this request.  A jury found Rivera guilty of the second-degree assault charge, and the district court sentenced him to 42 months in prison.


1.         Rivera argues the district court erred in refusing to give his requested instruction on the lesser-included offense of fifth-degree assault.  "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).

An instruction on a lesser-included offense should be submitted to the jury when  the offense in question is an included offense, and a rational basis exists for the jury to convict the defendant of the lesser offense and acquit him of the greater crime.  State v. Buntrock, 560 N.W.2d 383, 386 (Minn. 1997).  The parties agree that fifth-degree assault is a lesser-included offense of second-degree assault.  Thus, the issue is whether the record as a whole provides a rational basis for "acquitting the defendant of the charged offense and convicting him of the lesser offense."  State v. Brocks, 587 N.W.2d 37, 40-41 (Minn. 1998).

Under Minn. Stat. § 609.224, subd. 1 (2002), a person is guilty of fifth-degree assault, a misdemeanor, if he "(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another."  Under Minn. Stat. § 609.222 (2002), whoever assaults another with a dangerous weapon is guilty of assault in the second degree.  The significant difference between the two crimes is the dangerous-weapon element.  Ordinary objects can be transformed into dangerous weapons.  State v. Coauette, 601 N.W.2d 443, 447 (Minn. App. 1999), review denied (Minn. Dec. 14, 1999).  To be so transformed, an object must not just be dangerous, it must also be used in a manner calculated to cause great bodily harm.   Id.; see also Minn. Stat. § 609.02, subd. 6 (2002) (defining "dangerous weapon").

Here, Rivera choked S.C. with a chain.  According to S.C.'s testimony, Rivera was screaming, "I'm going to kill you" and said to one of the children, "Say goodbye to your mother, this is the last time you'll ever see her alive."  Although at trial Rivera denied saying these things, he admitted to telling the 911-dispatcher that he had been saying he wanted to kill S.C.  He also admitted to saying to S.C., "Do you want this to be your end?"  S.C. testified that during the incident she lost her breath and felt dizzy and nauseated.  Chain marks remained visible on S.C.'s neck for several days after the assault, and she temporarily lost her voice.

Based on this record, the chain was clearly used in a manner calculated to cause bodily harm.  See, e.g., State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983) (three-foot-long board is dangerous weapon when used to repeatedly beat victim); State v. Mings, 289 N.W.2d 497, 498 (Minn. 1980) (boot is dangerous weapon when used to kick victim repeatedly in head and chest).  No rational basis existed for the jury to convict Rivera of fifth-degree assault and acquit him of second-degree assault.  The district court did not abuse its discretion in denying Rivera's requested instruction.

            2.         Upon supplemental briefing, Rivera asserts that the Supreme Court's recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), makes his sentence unconstitutional.  In Blakely, the Supreme Court determined that by allowing judicially-found facts to enhance a sentence beyond the maximum sentence prescribed by the Washington sentencing guidelines, the Washington sentencing procedures deprived a defendant of the federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to sentencing.  Id. at 2537.

Here, the presumptive sentence for second-degree assault with a criminal history score of zero is 21 months in prison.  Minn. Sent. Guidelines IV.  The district court imposed a double durational departure on its own findings that the victim was particularly vulnerable, the offense was done in a particularly cruel way, and the crime was committed in the presence of children.  Thus, like Blakely, this case involves judicially-found facts enhancing Rivera's sentence beyond that which is recommended in the guidelines.  Accordingly, we remand to the district court to consider the applicability of Blakely to the sentence.

            3.         Rivera submitted a pro se supplemental brief, urging this court to reverse his conviction.  Rivera's brief contains no legal argument.  Assignment of error based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  We conclude that prejudicial error is not obvious upon inspection.

            Affirmed in part and remanded in part.