This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Eileen Carol Klinghagen,
Filed September 12, 2006
Affirmed in part, reversed in part, and remanded
Kandiyohi County District Court
File No. K4-03-1202
Mike Hatch, Attorney General, 1800
Ramona C. Lackore,
John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant (A05-1431))
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.
Appellant challenges her conviction of second-degree assault with a dangerous weapon, arguing insufficiency of the evidence; and the state challenges the downward dispositional departure in her sentence, arguing that substantial and compelling circumstances for the departure do not exist in the record. We affirm the conviction, but reverse and remand for resentencing.
August 2003, Sergeant Steve
seeing appellant drive through a stop sign and fail to use a turn signal, Marquardt
got into his squad car, activated his red lights and siren, and pursued
her. Marquardt testified he was
traveling approximately 80 miles an hour while in pursuant of appellant. At appellant’s residence,
was charged with second-degree assault with a dangerous weapon; fourth-degree
assault; fleeing a police officer; fifth-degree assault; obstructing legal
process; failing to stop at a stop sign; two counts of failure to signal; and
speeding. At trial,
version of the events is considerably different. According to her, she was driving to a farm
to talk to its owners about the city’s plans to build an airport when she saw
and followed a red-tailed hawk. When she
was approached by
trial, appellant was found guilty of all charges except for one count of
failing to signal and speeding. A pre-sentence
investigation report recommended that appellant be given the presumptive
sentence. The report concluded that appellant “took no
responsibility for her actions against Sergeant
At the sentencing hearing, appellant moved for a downward dispositional departure based on her mental health condition. The district court stayed the proceedings and ordered appellant to submit to a psychological evaluation. Dr. James observed that appellant suffered from certain mental disorders and recommended alternative sentencing for appellant that would include community service and outpatient psychological treatments.
In April 2005, the district court sentenced appellant to 21-months for the second-degree assault conviction to run concurrently with the sentences for her other convictions and granted a downward dispositional departure by staying execution of the sentence and placing her on probation for five years with several conditions. In this consolidated appeal, appellant challenges her conviction of second-degree assault, and the state challenges the downward dispositional departure.
D E C I S I O N
that the evidence was insufficient to support her conviction of second-degree
assault. Appellant does not challenge
her other convictions. On a claim of insufficiency
of the evidence, this court’s review is limited to a painstaking analysis of
the record to determine whether the evidence, when viewed in the light most
favorable to the conviction, is sufficient to allow the jury to reach its
verdict. State v. Webb, 440
N.W.2d 426, 430 (
Second-degree assault is
defined as assault with a dangerous weapon. Minn. Stat. § 609.222, subd. 1 (2002). Assault is defined as “(1) [a]n act done with intent to cause fear in
another of immediate bodily harm or death; or (2)
[t]he intentional infliction of or attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd. 10 (2002). “With intent to” and
“intentionally” mean that the actor has a purpose to do the thing or cause the
result specified, or believes that the act will cause the result if successful.
Appellant argues that her testimony is the only direct evidence of her intent and that the state’s circumstantial evidence of assaultive intent was not sufficient to contradict her testimony. But weighing the evidence is the exclusive prerogative of the jury. Travica, 398 N.W.2d at 670. Marquardt testified that appellant drove her vehicle toward him, forcing him to move into the roadside ditch to avoid being struck. The jury could reasonably conclude from the evidence that appellant drove her vehicle toward Marquardt with the intent to cause fear of immediate bodily harm or death.
Appellant argues that because she was prone to panic attacks and feared police officers, she lacked the requisite intent to harm Marquardt. But the jury chose to believe that the testimony of Marquardt and others demonstrated that appellant intended to harm Marquardt. See Travica, 398 N.W.2d at 670 (stating that it is the exclusive prerogative of the jury to weigh witness credibility). And appellant at trial introduced no evidence of medical records showing panic attacks or records of past incidents with the police. Therefore, viewing the evidence in the light most favorable to the jury verdict, the conviction of second-degree assault has adequate support in the record.
state contends that the district court abused its discretion in granting a
downward dispositional departure from the presumptive sentence of a 21-month
executed sentence. We review the district
court’s decision to depart from the presumptive sentence for an abuse of discretion. State
v. Geller, 665 N.W.2d 514, 516 (
The Minnesota Sentencing Guidelines provide a list of non-exclusive factors that a district court may use as reasons for granting a downward departure, which include:
(1) The victim was an aggressor in the incident.
(2) The offender played a minor or passive role in the crime or participated under circumstances of coercion or duress.
(3) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants (drugs or alcohol) does not fall within the purview of this factor.
. . . .
(5) Other substantial grounds exist which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense.
Here, the district court based its downward dispositional departure on two findings: (1) “the diminished emotional capabilities of [appellant]”; and (2) “the hope that [appellant] is amenable to the less restrictive probationary conditions.” The state argues that the district court’s finding that appellant has “diminished emotional capabilities” does not justify the downward departure in appellant’s sentence. We agree.
the district court found that appellant had “diminished emotional
capabilities,” it did not find that appellant “lacked substantial capacity for
Appellant relies heavily on the court-ordered psychological
evaluation to support the argument that she is mentally ill. Extreme mental impairment has been held to be a mitigating
factor in sentencing. State v. Wall,
343 N.W.2d 22 (
But the district court concluded that appellant was not so mentally ill as to lack responsibility for her actions. The record supports the district court’s determination. Dr. James testified that appellant was culpable for her actions, i.e., that her mental condition did not deprive her of control over her behavior. And appellant does not demonstrate that any of her disorders affected her control over her actions. See, e.g., Lee, 491 N.W.2d 895 (finding no “extreme impairment” even though the defendant was depressed, angry, and impulsive).
the district court expressed “the hope that [appellant] is amenable to the less restrictive
probationary conditions.” The district
court may impose probation “in lieu of an executed sentence when the defendant
is particularly amenable to probation.” State v. Gebeck, 635 N.W.2d 385, 389 (
The state concedes that the district court essentially found that
appellant was amenable to probation, but argues that its determination is not
supported by the record. The state relies
on the pre-sentencing report, which states that appellant denied wrongdoing and
blamed the city for her actions; and appellant’s testimony at the sentencing
hearing that “[her] whole problem through this whole thing has been in a battle
with the City of
Appellant argues that because of her mental illness, she “is
particularly unamenable to incarceration.”
Unamenability to incarceration due to a serious and persistent mental
illness is a factor that may be considered in determining whether a dispositional
departure is appropriate.
Based on our review of the record, we are unable to determine the basis of the district court’s conclusion that appellant is amenable to probation and what factors the district court considered in reaching its decision. Without any findings to explain or justify its conclusion that appellant is amenable to probation, we are unable to conduct appellate review or “examin[e] the record to determine whether there is evidence to support the departure[.]” See Carter, 424 N.W.2d at 823.
Accordingly, we remand the case to the district court to resentence appellant. Although there may be substantial and compelling reasons to justify a downward dispositional departure, we are unable to conduct appellate review on this record.
Affirmed in part, reversed in part, and remanded.
 Portions of the confidential psychological report were disclosed in appellant’s brief.