This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Jermon Anderson Schwatka,




Filed April 25, 2006

Affirmed in part, reversed in part, and remanded

Lansing, Judge


Morrison County District Court

File No. K8-04-690


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101;


Conrad Freeberg, Morrison County Attorney, 213 Southeast First Avenue, Little Falls, MN 56345 (for respondent)


Mark D. Nyvold, 332 Minnesota Street, Suite W1610, St. Paul, MN 55101 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Jermon Schwatka appeals from his conviction and sentence for first- and second-degree assault, arguing that the evidence of intent is insufficient to support his conviction and that the district court impermissibly double-sentenced him on a single behavioral incident.  In a pro se supplemental brief, Schwatka raises additional challenges to his conviction and sentencing.  Because the district court’s reasonable inferences from direct evidence fully support the district court’s finding of intent and the pro se brief provides no basis for reversal, we affirm the conviction.  But we agree that the two convictions arise from the same behavioral incident and, therefore, reverse and remand to vacate the sentence on the second-degree-assault conviction.


The assault convictions at the base of this appeal stem from a stabbing of Stanley Terrion near an entryway of his home in Little Falls.  On June 6, 2004, Jermon Schwatka followed Curtis Hanson into the house where Terrion lived with Viola Hanson.  As Terrion stood up from the kitchen table, he saw Schwatka enter the house and yelled at him three times to leave.

According to Terrion, Schwatka ignored him and continued walking.  As Terrion moved toward Schwatka, Schwatka hit him in the face.  Terrion responded by hitting Schwatka.  Terrion testified that he does not remember how the fight progressed from that point and that he did not see the knife used in the stabbing.

Terrion’s testimony is consistent with the testimony of two other witnesses, Viola and Ann Hanson.  According to them, Schwatka struck Terrion first and bent Terrion over a washing machine.  Viola Hanson then grabbed Schwatka’s hair and, as she pulled Schwatka back, saw that Schwatka was pulling a knife “out of [Terrion’s] side.”  Ann Hanson saw the knife in Schwatka’s right hand and hit him with a broom.  Viola Hanson described the knife as a four-inch switchblade, and Ann Hanson described it as a three-inch “flip knife.”  Schwatka put the knife in his pocket and ran out the door.

Schwatka testified that, as he entered the house, Terrion yelled at him and began attacking him.  Terrion grabbed him by the throat, someone else grabbed his hair, and Ann Hanson hit him with a broom.  Although he denies hitting Terrion, he indicated that he saw blood on Terrion’s lip.  Schwatka stated that, in an attempt to scare Terrion, he “just pulled [his] knife out of [his] pocket and raised it up.”  Schwatka also stated that he did not know whether his knife caused Terrion’s injury but, if it did, he did not intend the injury.  As a result of the stabbing Terrion sustained a laceration to his liver, which required surgery.  

The state charged Schwatka with first- and second-degree assault.  Schwatka waived his right to a jury trial, and, following a bench trial, the district court found him guilty of both offenses.  The district court sentenced him to 110 months for the first-degree-assault conviction and imposed a concurrent sentence of 45 months for the second-degree assault. 

Schwatka appeals from his conviction and sentence, asserting that the evidence is insufficient to show that he intended to stab Terrion and that the sentence for second-degree assault should be vacated because the offense arises from the same behavioral incident as the first-degree assault.  In a pro se supplemental brief, he also asserts that the district court unconstitutionally departed from the sentencing guidelines, that he received ineffective assistance of counsel, and that his jury-trial waiver was ineffective.



In considering a claim of insufficient evidence, we carefully review the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the fact-finder to reach the verdict.  State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).  We assume that the fact-finder believed the state’s witnesses and disbelieved any contrary evidence.  State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002).  And 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 reasonably conclude that the defendant was guilty of the charged offense.  State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999).

Both first- and second-degree assault require that the state prove that the defendant  either intended to cause fear in another of immediate bodily harm or intentionally inflicted bodily harm on another.  Minn. Stat. §§ 609.02, subd. 10 (defining assault), .221 (stating elements of first-degree assault), .222 (2002) (stating elements of second-degree assault).  Intent is a state of mind and is generally proved by circumstantial evidence, which requires “drawing inferences from the defendant’s words and actions in light of the totality of the circumstances.”  State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997).  In reaching its verdict, the fact-finder “may infer that a person intends the natural and probable consequences of his actions and a defendant’s statements as to his intentions are not binding on the jury if his acts demonstrated a contrary intent.”  Id.

Following the testimonial portion of the hearing, the district court made findings on the record and also issued written findings and an order.  The findings on the record  explain how the district court reconciled the testimony when it conflicted slightly, how the court made credibility determinations when the testimony conflicted directly, and why the court found that Schwatka’s actions did not constitute self-defense.  On the element of intent, the district court observed that the extent of the wound was consistent with a thrust rather than an inadvertent stabbing.  The court also noted that the close proximity of the two combatants suggested that Terrion did not run into the knife and that Schwatka was not merely brandishing the knife.  On this evidence, the court concluded that Schwatka intended to stab Terrion with the knife.

The evidence is sufficient to support the district court’s determination.  All of the witnesses, other than Schwatka, testified that Terrion moved aggressively toward Schwatka, who then punched him in the face.  Although Schwatka denied punching Terrion, he testified that he saw blood on Terrion’s lip.  The court inferred from Schwatka’s testimony that he had hit Terrion.  The record supports a finding that Schwatka intentionally withdrew the knife from his pocket while struggling with Terrion in a confined space, raised the knife, and stabbed Terrion.  In determining the issue of intent, the district court reasonably inferred that Terrion intended the natural and probable consequences of his actions.  The evidence is sufficient to support the district court’s conclusion beyond a reasonable doubt that Schwatka intended to assault Terrion.


            In his primary brief, Schwatka contends that his sentence for second-degree assault should be vacated because the offense was part of the same behavioral incident as the first-degree assault.  When a “person’s conduct constitutes more than one offense under the laws of the state, the person may be punished for only one of the offenses.”  Minn. Stat. § 609.035, subd. 1 (2002).  In determining whether conduct constitutes one behavioral incident, we consider the time and place of the conduct as well as whether the defendant was motivated by a single criminal objective.  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).

            We conclude that the two assault charges arise from the same behavioral incident, the stabbing of Terrion.  The charges arise from conduct that occurred at the same time and the same place, and the evidence does not suggest that Schwatka had more than one criminal objective.  The state concedes that both convictions are part of the same behavioral incident and does not oppose Schwatka’s request to reverse or vacate the sentence for second-degree assault.  We therefore reverse the sentence of second-degree assault and remand for the necessary correction.  See State v. Johnson, 653 N.W.2d 646, 653 (Minn. App. 2002) (reversing and vacating sentence when second-degree assault arose from same behavioral incident as first-degree offense).


            In a supplemental pro se brief, Schwatka raises three additional issues that relate to his sentence and conviction.

First, Schwatka alleges that the district court unlawfully departed from the sentencing guidelines.  We interpret this claim as an attempt to invoke the constitutional protections addressed in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Blakely, however, does not apply to Schwatka’s sentence because the state did not seek an upward departure, and the district court imposed a guidelines sentence.  Schwatka had a criminal-history score of two, and the severity level of first-degree assault is nine.  See Minn. Sent. Guidelines V (stating offense severity).  The presumptive guidelines sentence is therefore commitment to the commissioner of corrections for 110 months, and the district court did not depart when it sentenced Schwatka to 110 months.  See id. IV (stating presumptive sentence).

Second, Schwatka contends that he received ineffective assistance of counsel.  To establish a claim of ineffective assistance of counsel, the defendant “must demonstrate that counsel’s representation fell below an objective standard of reasonableness and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  A strong presumption exists that an attorney acted competently at trial.  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999).  As part of the duty of representation, an attorney must make tactical or strategic decisions on the presentation of evidence and the selection of witnesses.  Id.  Appellate courts do not review issues of trial strategy for determinations of competence.  Voorhees v. State, 627 N.W.2d 642, 651 (Minn. 2001).

Although Schwatka contends that his attorney failed to ask critical questions, he does not identify the nature of these questions or how they would have affected the outcome of the case.  The record establishes that his attorney vigorously examined each of the state’s witnesses, and the content of those questions is well within the scope of trial strategy.  We see no legal or factual basis for a claim that the attorney’s conduct fell below an objective standard that affected the outcome of the trial.

Finally, Schwatka indicates that his waiver of a jury trial was invalid because he did not understand the difference between a trial to a jury and a trial to the court.  The record does not support a claim that Schwatka was unadvised of this distinction.  The district court explained that a jury trial consists of twelve jurors who would have to reach a unanimous decision, that the judge in a bench trial makes the determination of whether the defendant is guilty, and that Schwatka’s decision to proceed with a jury trial would not deprive him of his right to a speedy trial.  Schwatka acknowledged that he understood this information, that his attorney had discussed his options with him, and that he wanted to “give up” his right to a jury trial and have the judge make the decision.  This on-the-record discussion establishes a knowing, intelligent, and voluntary waiver of Schwatka’s right to a jury trial.  See State v. Ross, 472 N.W.2d 651, 654 (Minn. 1991) (concluding that waiver of jury trial was valid when defendant was informed of basic elements of jury trial).

            Affirmed in part, reversed in part, and remanded.