This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Timothy G. Radil,
Douglas County District Court
File No. K0-02-1547
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
Douglas County Attorney, Douglas County Courthouse,
John M. Stuart,
State Public Defender, Davi E. Axelson, Assistant State Public Defender,
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal from conviction of second-degree felony murder, appellant argues that because second-degree culpable-negligence manslaughter was a more specific crime than second-degree felony murder (based on a predicate felony of assault), and because it covered his conduct of causing his estranged wife’s death in an altercation with her, he should have been convicted only of second-degree manslaughter. We disagree. Second-degree felony murder and second-degree manslaughter (although, on these facts, there is some overlap), remain separate and distinct offenses. We affirm.
On December 17, 2003, Susan Radil (hereinafter Radil) died from injuries she sustained when her husband, appellant Timothy G. Radil (hereinafter appellant), assaulted her on the evening of December 16, 2003. Appellant was subsequently charged with intentional second-degree murder in violation of Minn. Stat. § 609.19, subd. 1(1) (2002), and second-degree felony murder in violation of Minn. Stat. § 609.19, subd. 2(1) (2002). Prior to trial, appellant moved to include the lesser-included offenses of first- and second-degree manslaughter in the jury instructions. The district court granted appellant’s request, and a jury trial was held from February 23, 2004, to March 5, 2004.
At trial, the evidence and testimony showed that prior to the night of the incident, appellant and his wife were having marital problems. A few days before the incident, Radil had informed appellant that she was moving out. In an effort to reconcile their differences, appellant left early from work on December 16, and he and his wife went out for a few drinks to talk about the situation. During the course of the evening, Radil informed appellant that she had been seeing another man. Although appellant admitted that he was angry at Radil, he still hoped to work through their marital problems.
The couple returned home shortly after 10:30 p.m., and Radil stepped outside the garage to have a cigarette. Appellant stated that he still wanted to discuss the situation, so he followed Radil to the side garage door. Appellant testified that Radil told him that she did not want to talk about the situation anymore. Appellant then shoved Radil, causing her to fall over and hit her head on a large rock. According to appellant, he then shook Radil a few times until he noticed that she had lost consciousness. Appellant then went inside, wiped the blood off his hands, and briefly conversed with his daughter before going back outside to check on Radil. Upon returning to the scene, appellant noticed that Radil was not breathing, so he called out to his daughter to call 911, and then began administering CPR.
The state presented evidence that Radil’s death was caused by a much more brutal beating than admitted to by appellant. According to the state, after appellant pushed Radil to the ground, he savagely beat her with a rock. The state alleged that appellant then dumped the rock in a slough that was approximately 150 feet away from the house. The state presented evidence that appellant tried to clean some of the blood stains off the house, and that appellant initially told police that Radil had accidentally fallen when she stepped outside for a cigarette.
The jury convicted appellant of second-degree felony murder and second-degree manslaughter. Appellant subsequently moved the district court to enter a conviction only on the second-degree manslaughter conviction. The district court denied appellant’s motion, and sentenced appellant to 150 months imprisonment, the presumptive sentence for a second-degree felony murder conviction. This appeal followed.
D E C I S I O N
Appellant argues that the district court erred by
convicting him of second-degree felony murder rather than the lesser-included
offense of second-degree manslaughter. Appellant
only appeals from the district court’s legal determinations, which are reviewed
de novo. State v. Murphy, 545 N.W.2d 909, 914 (
speaking, the same set of facts may constitute more than one offense if the
statutes so provide. State v. Bolsinger,
The elements of manslaughter in the second degree in this case were:
First, the death of [Susan Radil] must be proven.
Second, [appellant] caused the death of [Susan Radil], by culpable negligence, whereby [appellant] created an unreasonable risk and consciously took a chance of causing death or great bodily harm. “Culpable negligence” is intentional conduct that [appellant] may not have intended to be harmful, but that an ordinary and reasonably prudent person would recognize as involving a strong probability of injury to others. “Great bodily harm” means bodily injury that creates a high probability of death, or causes serious permanent disfigurement, or causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.
First, the death of [Susan Radil] must be proven.
Second, [appellant] caused the death of [Susan Radil].
Third, [appellant], at the time of effecting the death of [Susan Radil], was committing or attempting to commit the felony offense of [assault in the second- or third-degree]. It is not necessary for the State to prove [appellant] had an intent to effect the death of [Susan Radil].
“The statutes of
any impairment of physical condition.”
First, [appellant] assaulted [Susan Radil].
Second, [appellant], in assaulting [Susan Radil], used a dangerous weapon. (A “dangerous weapon” is anything designed as a weapon and capable of producing death or great bodily harm, or any combustible or flammable liquid or anything else that, in the manner it is used or intended to be used, is known to be capable of producing death or great bodily harm or any fire that is used to produce death or great bodily harm.)
First, [appellant] assaulted [Susan Radil].
Second, [appellant] inflicted substantial bodily harm on [Susan Radil]. “Substantial bodily harm” means bodily harm that involves a temporary but substantial disfigurement, causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or causes a fracture of any bodily member. It is not necessary for the State to prove that [appellant] intended to inflict substantial bodily harm, but only that [appellant] intended to commit the assault.
Relying on Craven, appellant argues that the district court should have entered a conviction for second-degree manslaughter rather than second-degree felony murder because, under the facts and circumstances of this case, manslaughter in the second degree is the more specific offense. Appellant contends that the manslaughter conviction is the more specific offense because, in this case, to convict appellant of felony murder, the jury must have found that (1) appellant did not intend to cause the death of Radil; (2) appellant did in fact cause the death of Radil; and (3) appellant committed felony assault by either (a) intending bodily harm and actually causing substantial bodily harm, or (b) appellant intended bodily harm with the use of a weapon. Appellant’s argument is that to convict him of second-degree manslaughter, the jury would have needed to find all of the above mentioned elements of felony murder plus the additional element that appellant caused the death of Radil by culpable negligence. Appellant’s argument relies on Craven.
In Craven, the defendant was convicted of two counts of second-degree
felony murder, with fleeing a peace officer in a motor vehicle (fleeing) as the
predicate felonies. 628 N.W.2d at
634. On appeal, this court noted that
the crime of felony murder with fleeing as the predicate felony has the same elements as fleeing causing
death. See id. at 635-36 (stating that because the count charging the
defendant with felony murder relied on fleeing a peace officer in a motor
vehicle as the predicate felony, it does not require proof of any element not
already required to prove fleeing a peace officer in a motor vehicle causing
death). This court went on to state that since death
was already an element of the offense of fleeing causing death, the felony
murder statute served no purpose other than to ratchet up the permissible
Unlike in Craven, where the two counts were virtually identical, the two counts here, although close, are distinct crimes. Felony murder predicated on felony assault is causing the death of another person via a felony level assault, an intentional crime, without the necessity of proving the intent to kill. Second-degree manslaughter is causing the death of another person via a negligent act without the necessity of proving intent to harm. One crime requires proof that the defendant committed an intentional crime that caused a person’s death, while the other crime only requires that a person died as a result of the defendant’s culpable negligence. The elements of the two offenses are not identical.
There is sufficient evidence in the record to support the jury’s verdict of second-degree felony murder. The district court did not err by denying appellant’s motion to dismiss that charge and substitute a conviction of second-degree felony manslaughter.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 In a videotaped interview with police, appellant admitted that he pushed Radil, and then shook her several times.
 Appellant concedes that the jury’s verdicts here are not inconsistent.
 The court stated that
the legislature, by enacting Minn. Stat. § 609.487, subd. 4(a) (1998), and
creating the aggravated offense of fleeing causing death, had already used the
element of death to aggravate the offense.
Craven, 628 N.W.2d at
636. Therefore, the court determined
that there was “no legislative intent permitting aggravation of the offense
under the felony-murder statute using the same element of causing death.”