This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Noushoua (NMN) Kong, petitioner,


State of Minnesota,


Filed June 19, 2007


Minge, Judge


Hennepin County District Court

File No. 02073358



John M. Stuart, State Public Defender, Michael W. Kunkel, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Collins, Judge.*


U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the denial of his petition for postconviction relief, which contested the imposition of an upward departure for his conviction of first-degree assault committed for the benefit of a gang.  Appellant argues that the postconviction court abused its discretion by determining the following: (1) appellant’s conduct was more serious than the typical first-degree assault; and (2) the victim was “particularly vulnerable” during the commission of the charged offense.  Because the district court properly applied the law and did not abuse its discretion, we affirm.


            In September 2002, appellant Noushoua Kong was at a park with a group of friends.  One of appellant’s friends randomly approached a man (the victim) that they did not know.  Appellant’s friend returned to the group and accused the victim of “talking trash” about members of appellant’s gang.  After hearing this accusation, appellant pointed a gun at the victim and pulled the trigger.  The gun jammed, and the victim began running away.  Appellant pursued the victim through the park, and after clearing the jam, appellant shot the victim, who fell to the ground.  Appellant ran up to the victim while he was on the ground and shot the victim three or four more times.  Many other people were present and scattered when appellant fired the gun.

            An amended complaint charged appellant with three counts: attempted first-degree murder for the benefit of a gang under Minn. Stat. §§ 609.17, .185(a)(1), .229 (2002); attempted second-degree murder for the benefit of a gang under Minn. Stat. §§ 609.17, .19, subd. 1(1), .229 (2002); and first-degree assault for the benefit of a gang under Minn. Stat. §§ 609.221, subd. 1, .229 (2002).  In December 2002, appellant pleaded guilty to first-degree assault for the benefit of a gang, and the state dismissed the other two charges.  At the guilty-plea hearing, the district court informed appellant that he would likely be sentenced to 135 months. 

In determining the appropriate sentence, the district court considered the plea agreement and the testimony presented at the guilty-plea and sentencing hearings.  The district court concluded that the “offense occurred in front of a number of people in a public park, and therefore, put a number of other individuals in specific danger.”  The district court sentenced appellant to 135 months, which was an upward durational departure less than double the presumptive sentence.

            In January 2006, appellant filed a petition for postconviction relief, arguing that the record was insufficient to justify an upward departure.  The postconviction court denied appellant’s petition, reasoning that appellant’s crime “put innocent bystanders in fear and at risk and it was committed against a victim who was particularly vulnerable at the time the offense occurred.”  This appeal follows.


The issue is whether the postconviction court erred or abused its discretion in denying appellant’s petition for postconviction relief, thereby affirming the upward durational departure.  Appellate courts “review a postconviction court’s decision only to determine whether sufficient evidence supports the court’s findings.”  Greer v. State, 673 N.W.2d 151, 154 (Minn. 2004).  We will reverse for legal error and an abuse of discretion.  Id.; State v. Blom, 682 N.W.2d 578, 624 (Minn. 2004).  We review questions of law de novo.  Blom, 682 N.W.2d at 624.

Initially, appellant argues that even though the parties did agree that there were grounds for departure, “the record must reflect adequate grounds for such a departure before the district court is justified in imposing it.”  A sentencing court may not rely solely on a plea agreement in imposing an upward departure.  State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).  Here, the sentencing court did not rely solely on the parties’ agreement in departing from the guidelines.  It identified reasons justifying the departure, including the risk that appellant’s actions posed to bystanders in the park and appellant’s lack of remorse for his actions.  In reviewing the sentence, the postconviction court also noted that the victim was particularly vulnerable because appellant continued to shoot him after he fell to the ground.  Therefore, neither the sentencing court nor the postconviction court relied on the plea agreement alone.

Next, appellant argues that the record did not justify an upward departure.  The record must present substantial and compelling circumstances that justify a departure from the applicable presumptive sentence.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  A sentencing court must state its reasons for imposing an upward departure, and “[a reviewing] court will examine the record to determine if the reasons given justify the departure.”  State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002) (quotation omitted).  Even if “the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.”  Id. (quotation omitted).

In determining whether substantial and compelling circumstances are present in the record, district courts “should consider whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.”  Rairdon, 557 N.W.2d at 326 (quotation omitted).  District courts may look to the defendant’s overall course of conduct and determine whether it “represented a greater than normal danger to the safety of other people.”  State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981).  For example, a defendant’s conduct is more serious than the typical crime if it puts a large number of people at risk or in fear for their safety.  State v. Mitjans, 408 N.W.2d 824, 834 (Minn. 1987) (upholding an upward durational departure when the defendant fired two shots directly at the victim in a public bar); State v. Anderson, 463 N.W.2d 551, 553 (Minn. App. 1990) (upholding an upward durational departure when the defendant fired 13 shots in a mixed residential and commercial area and injured two out of the six people in the immediate area, one of them seriously and permanently), review denied (Minn. Jan. 14, 1991). 

The Minnesota Sentencing Guidelines also list aggravating factors that justify a departure.  For example, a departure is justified when (1) the victim was particularly vulnerable due to reduced physical capacity; or (2) the victim was treated with particular cruelty.  Minn. Sent. Guidelines II.D.2.b.(1)-(2).  The presence of one aggravating factor may be sufficient to justify a double durational departure.  See, e.g., State v. O’Brien, 369 N.W.2d 525, 527 (Minn. 1985) (upholding double durational departure when only one aggravating factor was present). 

Here, the postconviction court focused on two reasons for upholding the upward departure: (1) appellant’s crime “put innocent bystanders in fear and at risk”; and (2) appellant’s crime “was committed against a victim who was particularly vulnerable at the time the offense occurred.”  Appellant argues that these reasons were insufficient to uphold the departure.

A.  Fear and Risk

Appellant argues that the record does not justify an upward departure because his conduct did not place bystanders at any greater risk than the typical first-degree assault would.  We disagree.  The record shows that appellant chased the victim across a public park, that there were people in the park close to appellant at the time of the shooting, and that appellant fired multiple shots from his semi-automatic handgun.  The postconviction court noted these facts in concluding that appellant “proceeded with a total disregard for public safety” and put many bystanders “in fear and at risk of injury.”  

Appellant acknowledges that some bystanders “were placed in fear of harm from his actions,” but he argues that “it would be entirely ‘typical’ to anticipate that . . . bystanders are going to be placed in some ‘normal’ degree of fear of harm” during the course of a first-degree assault.  In support of this argument, appellant urges this court to compare his case to State v. Anderson, 463 N.W.2d 551 (Minn. App. 1990).  In Anderson, the defendant had a verbal altercation with a group of people outside of a house and then fired 13 shots at the group, hitting two of them.  Id. at 552.  Appellant argues that his conduct, unlike the conduct in Anderson, did not result in the “indiscriminate discharge” of a firearm at a large group of people, and he contends that his case is a typical assault because his shots were directed “exclusively” at the victim. 

But in upholding the durational departure imposed in Anderson, this court did not focus on whether the defendant had a specific target.  Rather, this court focused on “the large number of people in the area” and “the number of shots fired” in finding that the defendant’s conduct was “‘particularly serious and represented a greater than normal danger to the safety of other people.’”  Id. at 553 (quoting McClay, 310 N.W.2d at 685).  Because the record indicates that appellant fired multiple shots in a public place and put several people at risk or in fear for their safety, the postconviction court did not abuse its discretion by determining that appellant’s conduct was more serious than the typical first-degree assault.

B.  Particular Vulnerability

Appellant argues that the postconviction court erred as a matter of law by determining that the victim’s particular vulnerability, which arose during the course of the assault, justified an upward departure.  The sentencing guidelines generally describe vulnerability as a product of age, infirmity, or reduced capacity.  Minn. Sent. Guidelines II.D.2.b.(1).  But here, the postconviction court determined that the departure was justified because “[t]he victim was particularly vulnerable, as [appellant] fired three or four shots at him after he had fallen to the ground wounded from the first gunshot.” 

Appellant argues that, “[n]othing in the language of the guidelines or any case law . . . suggests that a vulnerability arising during the course of—and because of—a single offense should be taken into account.”  But contrary to appellant’s assertion, some Minnesota cases indicate that vulnerability may arise during the course of criminal conduct.  For example, in Mitjans, the defendant shot the victim twice, once while the victim was struggling for control of the defendant’s gun, and then a second time after the victim had been wounded and was lying on the floor.  408 N.W.2d at 826.  The supreme court determined that an upward departure was justified, in part, because the defendant shot the victim a second time while the victim “was in a particularly vulnerable position on the floor.”  Id. at 834; see also State v. Bock, 490 N.W.2d 116, 121 (Minn. App. 1992) (holding that the victim was in a vulnerable condition when, during the course of an assault, the defendant struck the victim once with a baseball bat, and then, while the victim was dazed and injured, struck a second blow), review denied (Minn. Aug. 27, 1992).  Therefore, the postconviction court did not err as a matter of law by determining that the victim’s particular vulnerability justified an upward departure. 




* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.