This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Adrian Carl Johnson,


Filed May 30, 2006


Peterson, Judge


Lyon  County District Court

File No. K2-05-431


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Building, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Richard R. Maes, Lyon County Attorney, Courthouse, 607 West Main Street, Marshall, MN  56258 (for respondent)


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


            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 Marshall on May 15, 2004.  A fight broke out, and a man named Ming Her and another man punched Johnson in the face, cutting his left eyelid.  After the fight, Moua asked Johnson and his friend Julio Facio to leave the party.  Moua testified that Johnson left peacefully and did not appear mad, but he appeared upset to have received such a large cut.  Johnson moved his car a couple blocks away and drove back to his home in Tyler with Facio in Facio’s car.  Moua testified that Her, two other men, and a woman stayed overnight at his house.  Moua’s wife and the woman slept on a hide-a-bed in the living room, and Her slept on a love seat in the living room. 

            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.


            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 Minn. 436, 442, 84 N.W.2d 904, 909 (1957).  In reviewing a claim of insufficient evidence in a criminal case, this court determines, “whether, under the facts in the record and any legitimate inferences that can be drawn from them, a jury could reasonably conclude that the defendant was guilty of the offense charged.”  State v. Race, 383 N.W.2d 656, 661 (Minn. 1986) (quotation omitted).  We review the evidence in the light most favorable to the conviction and “assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.”  Id. (quotation omitted).

            A conviction based on circumstantial evidence must be more carefully scrutinized.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  The conviction will be sustained on appeal only if, on considering all of the evidence, the circumstances form a chain that “‘leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.’”  Id. (quoting State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980)).  The evidence need not exclude all possibility of a defendant’s innocence; it need only make that theory seem unreasonable.  State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985).

            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.  Minn. Stat. § 609.185(a)(3) (2002).  “Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime . . . .”  Minn. Stat. § 609.17, subd. 1 (2002).  An essential element of attempted first-degree felony murder is that the defendant acted with intent to effect the death of a person.  “‘With intent to’ . . . means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(4) (2002). 

            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 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987) (citations omitted).  The “jury 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.”  State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997).

            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.

            Johnson 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.  See State v. Marsyla, 269 N.W.2d 2, 5 (Minn. 1978) (stating that premeditation may be formed in an instant before killing).  Therefore, Johnson contends, the same lack of evidence that compelled the jury to find that, before setting the fire, he did not think about killing Her, should have also compelled the jury to find that he had no intent to kill Her.

            But “a 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 (Minn. 1995).  To be entitled to relief because of inconsistent verdicts, the verdicts must be legally inconsistent; that is, a necessary element of each of two offenses must be subject to conflicting findings by the jury.  Id.  A defendant who “causes the death of a human being with premeditation and with intent to effect the death of the person or another” is guilty of first-degree premeditated murder.  Minn. Stat. § 609.185(a)(1).  Thus, premeditation is an element of attempted first-degree premeditated murder, and the not-guilty verdict on that charge is not legally inconsistent with the guilty verdict on the attempted-first-degree-felony-murder charge because premeditation is not an element of first-degree felony murder.

            Appellant 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 (Minn. 1989), he contends that in the interests of justice, this court should reduce his 180-month sentence to 90 months.

            A 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 (Minn. 1985).  The decision to depart from the sentencing guidelines rests within the discretion of the district court and will not be reversed absent an abuse of that discretion.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  Only in “rare” cases will a reviewing court reverse a district court’s imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Even where grounds exist justifying departure, an appellate court will not ordinarily interfere with the imposition of the presumptive sentence.  State v. Back, 341 N.W.2d 273, 275 (Minn. 1983).

            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.  Id.  The defendant argued on appeal that the evidence was insufficient to prove intent to kill.  Id.  The supreme court concluded:

            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.