This opinion will be unpublished and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
State of Minnesota,
Adrian Carl Johnson,
Filed May 30, 2006
Lyon County District Court
File No. K2-05-431
Maes, Lyon County Attorney, Courthouse,
Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from his conviction of and sentence for attempted first-degree felony murder, appellant Adrian Carl Johnson argues that the evidence was insufficient to support his conviction and that the interests of justice require that his sentence be reduced to one-half the presumptive sentence. We affirm.
Johnson went to a birthday party at Kou Moua’s home in
Early in the morning on May 16, 2004, Facio brought Johnson back to his car. Johnson testified that he got in his car and drove to Moua’s house. He entered Moua’s house through an unlocked door and walked into the living room. He saw Her on the love seat and thought about hitting him because he was mad about the fight, but he decided not to. Johnson testified that he left and went home to sleep.
Moua’s wife, who was sleeping on the hide-a-bed, woke up and saw flames. She tried to put out the fire, and when she realized that she could not put it out, she woke Moua and her children and the overnight guests to get them out of the house. She called the fire department, and firefighters quickly put out the fire.
A fire marshal who investigated the cause of the fire testified that the flame, heat, and char patterns in the carpet, furniture, and walls led him to believe that the fire started at the back of the love seat and that there was not an accidental cause. The marshal explained that the fire could have been caused by an open flame supplied to either a liquid accelerant or to combustibles that are readily ignited. He eliminated cigarettes or a smoldering fire as the cause of the fire.
Johnson was charged with attempted first-degree premeditated murder, attempted first-degree felony murder, first-degree arson, and first-degree burglary. A jury found him not guilty of attempted first-degree premeditated murder and guilty of attempted felony murder, arson, and burglary. The district court sentenced Johnson to a 180-month executed term for the attempted-felony-murder conviction. Johnson appeals the conviction and sentence.
D E C I S I O N
Johnson argues that the
evidence was insufficient to support his attempted-felony-murder conviction. The state must prove “beyond a reasonable
doubt all of the essential elements of the crime with which the defendant is
charged.” State v. Ewing, 250
conviction based on circumstantial evidence must be more carefully
scrutinized. State v. Bias, 419 N.W.2d 480, 484 (
Johnson contends that because the circumstances surrounding the fire are consistent with the hypothesis that he intended to scare or injure Her, rather than kill him, the circumstantial evidence was not sufficient to prove the intent element of attempted felony murder. We disagree.
A defendant who “causes the
death of a human being with intent to effect the death of the person or
another, while committing or attempting to commit burglary . . . [or] arson in
the first or second degree” is guilty of first-degree felony murder.
Intent . . . is a permissible inference from all the facts and circumstances and is a jury question. The task of inference is for the jury. Where there is a question of whether the defendant intended to kill or only injure, any conclusion must be drawn from the totality of circumstances. This includes the defendant’s conduct and defendant’s statements made at the time of the act.
State v. Alladin,
408 N.W.2d 642, 648 (
The totality of the circumstances shows that Johnson entered Moua’s house early in the morning, saw Her sleeping on the love seat and thought about hitting him, and a short time later, Moua’s wife awoke and saw flames from a fire that was intentionally set at the back of the love seat. The jury could infer from these circumstances that Johnson started the fire behind the love seat with the purpose of effecting Her’s death or believing that the fire would effect Her’s death. Although it is possible that Johnson believed that Her or someone else would wake up and respond to the fire before the fire caused a death, the mere possibility that that could happen, without any reason to believe that it actually would happen, makes this theory seem unreasonable. The evidence was sufficient to support the attempted-felony-murder conviction.
also argues that the fact that the jury found him not guilty of attempted
first-degree premeditated murder means that the jury concluded that before
starting the fire, he did not think, even for a second, about killing Her.
defendant is not entitled to relief simply because two verdicts—for example, a
guilty verdict of one offense and a not guilty verdict of a similar offense—by
the same jury are logically inconsistent.” State
v. Netland, 535 N.W.2d 328, 331 (
argues that the district court abused its discretion in denying his motion for
a downward durational sentencing departure, and citing State v. Gilbert, 448 N.W.2d 875 (
downward durational departure is justified when the defendant’s conduct is
significantly less serious than that typically involved in the commission of
the offense. State v. Mattson, 376 N.W.2d 413, 415 (
In Gilbert, the jury acquitted the
defendant of attempted first-degree premeditated murder and found the defendant
guilty of attempted second-degree intentional murder and first- and second-degree
assault. 448 N.W.2d at 876. Although the presumptive sentence for
attempted second-degree intentional murder was 128 months, the district court
sentenced the defendant to 240 months, the statutory maximum.
A reading of the record makes it clear that defendant not only intended to maim [the victim], but that he had a depraved mind and acted without regard for her life. Indeed, defendant’s conduct can only be described as horrendous and outrageous. However, one cannot read the record without also realizing that the issue of whether defendant actually intended to kill [the victim], rather than just maim her, is a close issue. While we are unwilling to say that the evidence of actual intent to kill was legally insufficient to sustain the conviction of attempted second-degree intentional murder, we have concluded that, because of the closeness of the issue, it would serve the interests of justice to reduce defendant’s sentence to 130 months, or double the maximum presumptive sentence of 65 months, as if defendant had been convicted of the lesser offense of attempted third-degree depraved mind murder.
Johnson contends that as in Gilbert, the issue of whether he intended to kill Her is close, and, therefore, he argues, in the interests of justice this court must reduce his sentence to 90 months, which is one-half the presumptive sentence for attempted first-degree felony murder. But Johnson’s argument fails to recognize that the sentence reduction that the supreme court granted in Gilbert resulted in a sentence that was still a two-month upward durational departure from the presumptive sentence for the offense for which Gilbert was sentenced. Johnson received the presumptive sentence for attempted first-degree felony murder, and Gilbert does not support his argument that the interests of justice require a sentence reduction. Johnson has not demonstrated that the district court abused its discretion in imposing the presumptive sentence or that he is entitled to a sentence reduction in the interests of justice.