This opinion will be unpublished and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
Stephen Charles Hollermann,
Filed December 7, 2004
Robert H. Schumacher, Judge
Jeffrey R. Edblad, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)
Craig E. Cascarano, 333 South Seventh Street, Suite 2890, Minneapolis, MN 55402 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Stephen Charles Hollermann was charged with second–degree intentional murder under Minn. Stat. § 609.19, subd. 1(1) (2000). He challenges his conviction of second-degree felony murder under Minn. Stat. § 609.19, subd. 2(1) (2000). He argues there is insufficient evidence to support his conviction, second-degree felony murder is not a lesser-included offense of second-degree intentional murder, and the upward departure was improper. We affirm.
On March 22, 2002, Hollermann's wife died from "blunt force head trauma." Authorities originally believed the injuries were solely the result of an automobile accident. Hollermann's Jeep Cherokee struck a Hyundai Excel that had been left on the shoulder of Highway 95 near Princeton, Minnesota. The right front corner of Hollermann's Jeep struck the left rear corner of the Hyundai, causing the Jeep to spin out of control and come to rest in the ditch. Hollermann's wife died at the scene of the accident. Hollermann complained of neck and back pain and was taken to the nearby hospital where it was later determined that he suffered no injuries.
State Trooper Anthony Snyder was dispatched to the collision and was the lead investigator at the scene. Snyder was suspicious because "one person was dead, one person was uninjured . . . [there was] very little damage to the vehicle and there was a lot of blood." Snyder's suspicions were later enhanced when he learned of an anonymous phone call to an officer of the Princeton Police Department that stated, "I think it's important that you know the husband of the woman who died in the car accident on Highway 95 is having an affair and his staff at work had confronted him about it approximately a week ago."
Snyder eventually relayed his suspicions to Special Agent Jon Hermann, a homicide investigator with the Bureau of Criminal Apprehension. The two officers interviewed Hollermann at the Princeton Police Department. The officers pointed out that there was far too much blood in the Jeep to have come just from the accident and asked Hollermann if he and his wife had an argument the night of the collision. Hollermann denied there was any argument. After the officers pointed to numerous reasons why the amount and location of the blood in his Jeep could not have come from the accident, Hollermann admitted the couple got into an argument inside the car and he pushed her head against the Jeep's pillar "a couple [times], two or three maybe." He also admitted that his wife was bleeding pretty heavily at that point. Hollermann stated to the officers, "I noticed she was bleeding I knew I screwed up and had to take her to the hospital." Hollermann was charged with one count of second-degree intentional murder under Minn. Stat. § 609.19, subd. 1(1) (2000).
At trial, a state patrol accident reconstructionist, Sergeant Paul Skoglund, testified that based on his examination of the collision Hollermann's minimum speed was between 39 and 42 miles per hour. Skoglund testified that the damage sustained by both vehicles was, in his experience, consistent with Hollermann's Jeep traveling 42 miles per hour. A second state patrol reconstructionist, Sergeant Donald Schmalzbauer, also testified that the damage was consistent with the estimated speed of 42 miles per hour.
Skoglund also testified that, based on the 42 mph speed and the distance between where the Hyundai was parked and where a tire mark indicated Hollermann's Jeep crossed the "fog line," he concluded Hollermann had between 2.1 and 2.2 seconds to react before he hit the Hyundai. Skoglund testified the average person's reaction time is 0.75 seconds. Skoglund testified there were no signs of braking or avoidance steering, but based on the way the steering wheel was bent, Skoglund believed Hollermann braced for impact.
Doctor Janice Ophoven, a forensic pathologist, also testified at trial. She testified that Hollermann's wife had suffered multiple lacerations to the forehead and scalp area, a fractured nose, other facial abrasions, a bruised elbow, and most significantly multiple skull fractures and bruising of the brain. Dr. Ophoven testified that Hollermann's wife suffered two types of skull fractures—a "depressed" fracture and a "basilar" fracture. Dr. Ophoven testified that either fracture would be sufficient to cause death, but it would be possible for someone to survive a depressed fracture and even walk around in such a condition, while a basilar fracture is almost certainly lethal.
Dr. Ophoven's supervisor, Dr. Janis Amatuzio, was also consulted after Hollermann admitted to assaulting his wife. With the knowledge of the assault, Dr. Amatuzio attempted to reconstruct the events of the night based on Hollermann's wife's injuries and the interior of Hollermann's Jeep. Dr. Amatuzio testified that the adjustment knob for the passenger-side mirror was the only object that could have caused the four lacerations to the right side of Hollermann's wife's head and the underlying depressed skull fracture. Based on the blood pattern on the windshield, Dr. Amatuzio believed that in the automobile collision Hollermann's wife's elbow likely struck the windshield while her forehead struck the rearview mirror. Dr. Amatuzio testified that the basilar fracture was certainly lethal and that it could have happened either during the assault or during the collision. Although Dr. Amatuzio was unable to determine to a medical certainty whether it was the assault that caused Hollermann's wife to die, she recommended that the death certificate list the immediate cause of death as blunt force trauma to the head, that the underlying reason was an assault with the collision as a contributing factor, and that the death was the result of a homicide. The case was tried to the court alone.
After both sides rested, Hollermann requested the opportunity to discuss lesser-included offenses and an off-the-record discussion followed. In letters submitted to the district court, the state requested the court to consider second-degree felony murder; Hollermann objected. The district court found Hollermann guilty of second-degree felony murder. The court reasoned that second-degree felony murder was a lesser-included offense of second-degree intentional murder, and that while Hollermann did not intend to kill his wife, he was guilty of second-degree felony murder.
The presumptive sentence for Hollermann's offense was 150 months in prison. But the district court departed from the presumptive sentence, sentencing him to 210 months in prison based on Hollermann's wife's vulnerability and the particular cruelty by which the crime was committed.
1. Hollermann argues the circumstantial evidence in this case is insufficient to support the verdict. In considering a sufficiency of the evidence challenge, the reviewing court will "take the evidence in the light most favorable to the state and assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence." State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002); see also Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (stating appellate courts review criminal bench trials same as jury trials when determining whether evidence is sufficient to sustain convictions). Appellate review is "limited to ascertaining whether a jury, giving due regard to the presumption of innocence and to the state’s burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom." State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999) (quotation omitted).
A conviction based on circumstantial evidence may stand where the evidence viewed as a whole so directly leads to the accused's guilt that it excludes any other reasonable inference. State v. Bias, 419 N.W. 2d 480, 484 (Minn. 1988). This standard "still recognizes a jury is in the best position to evaluate the circumstantial evidence . . . [and] determine the credibility and weight given to the testimony of individual witness." Id. (quotation omitted).
Hollermann was convicted of second-degree murder under Minn. Stat. § 609.19, subd. 2(1) (2000), which provides a person is guilty of felony murder if the person "causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting."
A person is guilty of felony murder if
the fatal wound was inflicted during the same chain of events in which the underlying felony took place so that the requisite time, distance, and causal relationship between the felony and killing are established. So long as the underlying felony and the killing are part of one continuous transaction, it is irrelevant whether the felony took place before, after, or during the killing.
State v. McBride, 666 N.W.2d 351, 365-66 (Minn. 2003) (quotations and citation omitted).
At trial, Dr. Amatuzio testified that the deceased's depressed skull fracture was almost certainly the result of Hollermann repeatedly slamming her head into an adjustment knob on the Jeep's passenger door and that the basilar fracture could have been caused during the assault or during the collision. Both Dr. Amatuzio and Dr. Ophoven testified that the depressed skull fracture would probably have been lethal on its own and that a second brain injury would increase the likelihood of death, but neither one was able to say to a medical certainty whether the assault or the collision was ultimately the cause of death.
The district court explicitly found "the collision was not an accident." In making this finding the court relied on the accident reconstructionist's testimony that Hollermann had time to react, made no attempt to swerve or brake, but braced himself for impact and the fact that Hollermann had "adjusted his seat as far back as he could while still being able to reach the controls of the vehicle, so that he could reduce his chance of injury." Snyder testified that the driver's seat was moved back to the second to the last notch when he arrived at the accident scene. In transcripts of Hollermann's statements to the police, he states he does not drive with the seat that far back.
The evidence supports the district court's finding that Hollermann intentionally hit the Hyundai, intending to cover up his earlier assault. The collision was part of the same chain of events as the assault and therefore, whether Hollermann's wife died from the injuries suffered from the assault or from the injuries suffered in the collision, the evidence is sufficient to prove Hollermann guilty of second-degree felony murder. See McBride, 666 N.W.2d 365-66.
2. Hollermann argues that the trial court committed reversible error when it added second-degree felony murder as a lesser-included offense over his objection. "[I]n a murder case it is preeminently the trial court's duty in the exercise of its discretion to determine what lesser degrees of homicide to submit. . . . Neither the prosecution nor the defense can limit the submission of such lesser degrees as the trial court determines should be submitted." State v. Leinweber, 303 Minn. 414, 421-22, 228 N.W.2d 120, 125 (1975). When the evidence would reasonably support a conviction of the lesser degree while at the same time support a finding of not guilty of the greater offense, "it is the duty of the trial court to submit such lesser degrees as it determines the evidence warrants." Id. at 422, 228 N.W.2d at 126 (emphasis added).
This court has explicitly held that felony murder is a lesser-included offense of second-degree intentional murder. State v. Lory, 559 N.W.2d 425, 428-29 (Minn. App. 1997), review denied (Minn. April 15, 1997). At oral argument, Hollermann conceded that Lory applies but argued that it was wrongly decided because this court did not reach its decision by comparing the elements of second-degree intentional murder and second-degree felony murder. He argues that second-degree felony murder requires the state to prove that the defendant committed a felony with force and violence, while second-degree intentional murder does not.
Hollermann's argument, however, is based on a flawed reading of Minn. Stat. § 609.19. Minn. Stat. § 609.19, subd.2(1) provides a person is guilty of second-degree felony murder if that person "causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting." Subdivision 2(1) was added to Minn. Stat. § 609.19 in 1981. 1981 Minn. Laws ch. 227 § 10. At that time, Minn. Stat. § 609.185(2) already provided that a person is guilty of first-degree murder if that person "causes the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence." See 1975 Minn. Laws ch. 374 § 1 (replacing phrase "rape or sodomy with force of violence" with current language). It is clear that the legislature intended that the phrase "with force or violence" to describe the type of criminal sexual conduct that is not a predicate felony for second-degree felony murder because causing a death during such crimes is first-degree murder. See Minn. Stat. § 645.16(2) (stating intention of legislature controls statutory interpretation and may be ascertained by considering "circumstances under which it was enacted"); see also State v. Cole, 542 N.W.2d 43, 52 (Minn. 1996) (reiterating that since 1981 amendment any felony, including property offense, can be predicate felony so long as felony "involves a special danger to human life").
Hollermann's argument also fails because it is based on an overly simplistic comparison of the elements of the two categories of murder. Second-degree intentional murder and second-degree felony murder require proof of the same elements except for the defendant's mental state. Compare Minn. Stat. § 609.10, subd. 1 with Minn. Stat. § 609.19, subd. 2(1); see also 10 Minnesota Practice, CRIMJIG 11.26, 11.30 (4th ed. 2000) (listing elements for each offense). For intentional murder the state must prove that the defendant intended to cause the victim's death. For second-degree felony murder the state must prove the defendant acted with malice by proving that the defendant caused the victim's death while he or she committed or was attempting to commit a felony that involved special danger to human life. Cole, 542 N.W.2d at 51-52 (stating "one whose conduct brought about an unintended death in the commission of a felony [can] be found guilty of murder by imputing malice when there is no specific intent to kill"). Because proof of intent to kill necessarily proves malice, felony murder is a lesser-included offense of intentional murder. See Minn. Stat. § 609.04 (2000) (providing "offense necessarily proved if the crime charged were proved" is lesser-included offense).
Lory was correctly decided. The district court properly determined that second-degree felony murder was a lesser-included offense of second-degree intentional murder. Because we conclude the court did not err in considering second-degree felony murder, we do not address Hollermann's argument that he was prejudiced by the district court's decision to consider second-degree felony murder. See State v. Gisege, 561 N.W.2d 152, 157-59 (Minn. 1997) (stating "jury can . . . find the defendant guilty of any lesser-included offense, whether or not the lesser-included offense was part of the complaint or indictment" but addition of lesser, but not included, offense was fundamental error that required reversal only if error denied defendant "a substantial right, namely, the opportunity to prepare a defense to the charge against him" (quotation omitted)).
3. Hollermann also argues the trial court impermissibly imposed a 40% upward durational departure. 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). "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 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).
Here, the trial court stated during the sentencing hearing that it was basing the upward departure on Hollermann's wife's vulnerability and the "particular cruelty visited on the victim." Both factors are listed as aggravating factors under Minnesota Sentencing Guideline II.D.2.b, and therefore if either finding is supported by the evidence the upward departure should be affirmed. State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998) (concluding finding of particular cruelty alone is sufficient to support departure because it is enumerated as aggravating factor in sentencing guidelines).
In basing its departure on Hollermann's wife's vulnerability, the district court stated that "the fact that she was disabled, that her arm was disabled . . . tends to make this outside the [typical second-degree felony murder]." For vulnerability of a victim to be based on an injury, "the injury must be a substantial factor in accomplishing the crime and the perpetrator must know of the injury." State v. Hanson, 405 N.W.2d 467, 469 (Minn. App. 1987). Numerous witnesses testified that the deceased had undergone elbow surgery on her right arm two weeks before her death and that her arm was in a sling at the time of her death. According to Hollerman's statements admitted in evidence, he repeatedly slammed his wife's head into an adjustment knob on the passenger door of his Jeep. If her right arm had not been in a sling, she would have been able to defend herself and thereby prevented Hollermann from hitting her head against the passenger side door with sufficient force to fracture her skull.
The district court did not abuse its discretion in departing based on Hollermann's wife's vulnerability. Because the victim's vulnerability is specifically listed as an aggravating factor in the sentencing guidelines, it is sufficient to support an upward departure. Folkers, 581 N.W.2d at 327 (Minn. App. 1998). Therefore, we do not address whether the district court's decision to depart is also correctly based on its conclusion that this offense was committed with particular cruelty.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Hollermann did not raise, argue, or brief the issue of whether his sentence was unconstitutional under the Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004) and we do not address the issue. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).