This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
COURT OF APPEALS
State of Minnesota,
Bryce A. Minick,
Filed October 9, 2007
Concurring specially, Randall, Judge
St. Louis County District Court
File No. K5-03-100428
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Melanie S. Ford, St. Louis County Attorney, Gordon P. Coldagelli, Assistant County Attorney, 300 South 5th Avenue, Room 222, Virginia, MN 55792 (for respondent)
John M. Stuart, State Public Defender, Jessica Godes, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414
Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Dietzen, Judge.
On appeal from his sentence imposed for second-degree felony murder following remand for resentencing pursuant to Blakely, appellant argues that the district court, following his waiver of his right to a jury determination of sentencing facts, erred in concluding that the victim’s vulnerability due to intoxication and appellant’s particular cruelty in hitting and kicking the victim several times were substantial and compelling circumstances warranting an upward departure. Appellant argues that his spur-of-the-moment decision to rob the victim reflected no planning, the victim’s intoxication was not a substantial factor in the commission of the crime, and the severity of the assault is typical of felony murder and therefore not grounds for departure. Because the victim’s vulnerability and the particularly cruel nature of the crime constitute substantial and compelling reasons to depart from the sentencing guidelines, we affirm.
On November 25, 2003, appellant Bryce Minick pleaded guilty to second-degree felony murder in violation of Minn. Stat. § 609.19, subd. 2(1) (2002). At the plea hearing, appellant admitted that on March 9, 2003, he was at a friend’s apartment, drinking alcohol. While at the apartment, appellant was informed that there was an intoxicated man outside who was stumbling down the street. Appellant admitted that he then went to confront the man with the intent to rob him. According to appellant, he walked beside the victim, confirmed that he was intoxicated, and then struck him once, knocking him to the ground. Appellant admitted that after knocking the victim to the ground, he hit him five times with his fist and kicked him five times with his foot. Appellant then took the victim’s wallet and cigarettes. Appellant acknowledged that the injuries he inflicted upon the victim caused his death.
At sentencing, the state moved for a double upward durational departure. The district court agreed with the state and sentenced appellant to 300 months of incarceration, double the presumptive 150 months. The district court based the upward departure on the following three aggravating factors: (1) appellant planned to confront and rob the victim; (2) appellant took advantage of the victim’s vulnerability in an intoxicated state; and (3) appellant exhibited particular cruelty by continuing to beat the victim, leaving him severely injured in the street in below-zero temperatures, and failing to summon help.
In January 2005, this court reversed appellant’s sentence on the ground that the sentence violated appellant’s jury-trial rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). State v. Minick, No. A04-625 (Minn. App. Jan. 11, 2005). At the re-sentencing hearing, appellant agreed to waive his right to a jury determination of aggravating factors under Blakely, with the understanding that if the district court found the existence of aggravating factors, the maximum sentence allowed under the agreement would be 210 months in prison. The state then requested the agreed-upon maximum upward departure of 210 months in prison. Appellant requested the presumptive guidelines sentence of 150 months. The district court granted the state’s request, sentencing appellant to a 210-month sentence. The court based the upward departure on the same aggravating factors that were found at appellant’s first sentencing hearing. This appeal follows.
D E C I S I O N
Upward departure is within the discretion of the district court only if substantial and compelling aggravating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). “When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure.” State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). If the record supports the district court’s findings of substantial and compelling circumstances, we will uphold the sentence unless we strongly feel that the sentence is disproportionate to the offense. State v. Schroeder, 401 N.W.2d 671, 674 (Minn. App. 1987), review denied (Minn. Apr. 23, 1987).
In determining whether to durationally depart from the guideline sentence, the district court considers “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime described in the applicable statute.” State v. Thao, 649 N.W.2d 414, 421 (Minn. 2002). The reasons used for departing must not themselves be elements of the underlying crime. Id. at 423-24. Additionally, when departing from the presumptive sentence, the district court must provide written reasons that specify the substantial and compelling nature of the circumstances and that demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence. State v. Foreman, 680 N.W.2d 536, 540 (Minn. 2004).
In sentencing appellant to an upward departure, the district court stated:
Well, both counsel and [appellant] are aware, the Court had previously addressed these issues at its sentencing back on January 9th of 2004, and would find that the circumstances have not changed, and would make the same findings and would adopt the findings as set forth on the record at that time as its findings today, just paraphrasing to the extent that the Court had found at that time aggravating factors, that [appellant] had planned to confront and rob the victim, that [appellant] had taken advantage of the victim’s vulnerability, and that the victim was in a highly intoxicated state, and that [appellant] exhibited particularly [sic] cruelty by continuing to beat the victim, leaving him severely injured in the street in below zero temperatures and failing to summon help.
Appellant argues that the district court erred in concluding that there were substantial and compelling circumstances to support an upward durational departure. Specifically, appellant contends that (a) the victim’s intoxication was not a substantial factor in the commission of the crime, (b) his actions do not constitute particular cruelty because they are typical of felony murder, and (c) his actions were “spur-of-the-moment” and reflected no planning.
I. Vulnerability of the victim
Appellant contends that the district court erred in relying on the vulnerability of the victim as a factor supporting the departure. A victim is particularly vulnerable due to “age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender.” Minn. Sent. Guidelines II.D.2.b.(1). A victim’s vulnerability due to intoxication may be considered as a reason for departure. See Ture v. State, 353 N.W.2d 518, 522 (Minn. 1984). But the vulnerability of the victim is not an aggravating factor unless it was a “substantial factor” in the defendant’s commission of the crime. State v. Gardner, 328 N.W.2d 159, 162 (Minn. 1983).
Here, the record reflects that the victim’s alcohol concentration, as determined from a sample obtained during the autopsy, was .34. Appellant knew that the victim was intoxicated. But appellant argues that because there is no evidence that the victim’s intoxicated state was a substantial factor in the commission of the crime, the district court erred in concluding that “victim vulnerability” constituted a substantial and compelling circumstance on which to base an upward departure. We disagree.
Appellant stated at the plea hearing that he was told by some acquaintances that a man was drunk and stumbling on the street and that the man almost got hit by a van. Appellant also stated that after receiving this information, he went outside with the intent to rob the man. But appellant took no action until he started walking next to the man and “could tell he was drunk.” The victim’s level of intoxication made him an easy target, and appellant took advantage of the victim’s drunken state. Moreover, the fact that appellant confirmed that the victim was drunk before he attacked him indicates that appellant was “scoping out” the man’s level of vulnerability. Accordingly, the district court properly relied on the victim’s vulnerability as a factor supporting the upward departure.
II. Particular cruelty
Appellant contends that the district court erred in finding “particular cruelty,” and by relying on that finding to support an upward durational departure. Under the sentencing guidelines, cruelty is an aggravating factor that may be used for a departure when “[t]he victim was treated with particular cruelty for which the individual offender should be held responsible.” Minn. Sent. Guidelines II.D.2.b.(2). Cruelty is a matter of degree, and it is not easy to say when a departure is justified. Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989). The ultimate question, however, is whether appellant’s actions were so significantly different from those of other persons similarly situated that an upward sentencing departure is justified. See State v. Esler, 553 N.W.2d 61, 64 (Minn. App. 1996), review denied (Minn. Oct. 15, 1996).
Appellant argues that although his conduct was “outrageous,” inflicting multiple blows and leaving the victim in the street in subzero temperatures without rendering any aid is typical of second-degree murder cases. We disagree. In State v. Jones, the supreme court concluded that a defendant’s failure to anonymously notify paramedics about the victim’s condition was properly considered by the district court as an aggravating factor justifying departure from the presumptive sentence. 328 N.W.2d 736, 738 (Minn. 1983) (stating that the defendant’s act “in leaving the victim in a beaten condition and in failing to notify the paramedics anonymously relates back and supports the view that the crime was committed in a particularly cruel way”). Moreover, gratuitous infliction of pain can qualify as particular cruelty. State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981). In cases where there were multiple wounds to the victim, evidence has supported a finding of particular cruelty and departure has been affirmed. Compare State v. Kisch, 346 N.W.2d 130, 133 (Minn. 1984) (finding defendant’s conduct more serious than typical felony murder where victim suffered four blows to the head, causing head to explode), and State v. Vogelpohl, 326 N.W.2d 635, 636 (Minn. 1982) (finding murder particularly cruel when victim was struck on the head at least eight times with two different hammers and defendant put paper in victim’s mouth to mask dying sounds), and State v. Rathbun, 347 N.W.2d 548, 548 (Minn. App. 1984) (multiple stab wounds can indicate particular cruelty and support an upward departure) with Holmes, 437 N.W.2d at 58-60(finding that stabbing victim three times was not significantly more cruel than the conduct normally associated with intentional murder).
Here, appellant admitted that while the victim lay on the ground, he hit and kicked the victim a total of ten times. This constitutes “gratuitous infliction of pain.” Schantzen, 308 N.W.2d at 487. In addition, appellant left the victim lying on the street in subzero temperatures after inflicting multiple blows on the victim. This was properly considered by the district as an aggravating factor when sentencing appellant to an upward durational departure. See Jones, 328 N.W.2d at 738. Accordingly, appellant’s actions constitute particular cruelty.
Finally, appellant argues that the district court erred in finding “planning” and relying on that finding to support an upward durational departure. We agree. The supreme court in State v. Kindem concluded that the defendant’s planning, which included hiding baseball bats in the shrubbery near the location of the robbery with the intent to use the bats during the robbery, wearing dark clothing and a mask during the robbery, and having a get-away car waiting nearby, constituted an aggravating factor justifying an upward departure. 338 N.W.2d 9, 17-18 (Minn. 1983). But here, unlike Kindem, the record does not support a finding of extensive planning by appellant. Instead, the record reflects that appellant was at a friend’s apartment drinking when somebody mentioned that an intoxicated man was stumbling down the street. Upon hearing this information, appellant decided to go outside and rob the man. Although appellant “planned” to rob the man in advance of the robbery, we cannot agree that this record represents the type of “extensive planning” contemplated by the supreme court in Kindem that could serve as a substantial and compelling reason to justify a departure. Nevertheless, despite the lack of “planning” by appellant, we conclude that the record supports the district court’s findings of the vulnerability of the victim and the particular cruelty with which the victim was treated are sufficient substantial and compelling factors to support the upward departure.
RANDALL, Judge (concurring specially)
I concur in the result, as there is enough in the record to sustain the district court. I write separately to point out the case is close. Everything the appellant did, could, after a rational study of various similar crimes, be considered “just part of a serious crime for which there is a serious presumptive sentence.”
Appellant wanted to get some easy money and did not make any moves until he was satisfied that this victim would be easy to subdue and rob because he was drunk. That is not unusual thinking nor is it particularly egregious thinking for someone who wants to take money or property from someone else and, at the same time, lower the chance of getting caught. Bank robbers, both sophisticated and amateur, may seek out smaller branches, smaller banks in small towns, to lower the risk of going up against highly trained security personnel. Highly trained security personnel go with larger banks that have the earnings to afford the overhead.
Put another way, the average bank robber intentionally plans to point a gun at the young woman behind the teller’s cage and ask her to empty the cash drawer, probably more often than he walks into a police station and points a gun at the armed sergeant behind the desk and asks him to empty the cash drawer. That decision is volitional. That decision is premeditated. That decision is based on who is “the weaker prey.” But why should that decision be deemed “extra awful” simply because it is part of the basic planning of any predator on prey. The lone wolf in the wild is going to choose a doe or a fawn or a cripple (intentionally) before it chooses a seasoned buck in rut with ten sharp points. That wolf is not guilty of egregious “planning and premeditation.” This is simply what wolves do. A predator picking out someone looking smaller and weaker and looking more infirm than Hulk Hogan or Jesse Ventura is not “aggravating”; it is common sense.
Appellant left the victim in sub-zero temperatures without calling 9-1-1 or the local regional hospital. That fact supports the finding that the victim’s injuries were, thus, aggravated and led to an untimely death, but leaving a victim where the victim fell and trying to get away is within “the normal course of events” for defendants who assault someone else. They try to get away. Those actions led to a death here and the presumptive sentence for a felony murder is the presumptive sentence for a felony that results in a death.
I have read and do not pay any attention to any case that states leaving a victim where they lay is somehow more serious than the standard crime. I will state it simply. It defies common sense to argue that a defendant in an assault (murder, mugging, etc.) leaving the victim where he lies and trying to quickly get away is anything but normal conduct for an assaulter. When the assaulter is caught, the punishment is for assault. If the assault causes a death, the punishment is for some degree of murder, including, as here, felony murder. This defendant did precisely what 99.5% of all defendants do. He injured someone and took off. Holmes v. State, 437 N.W.2d 58, 59 (Minn. 1989), is instructive and a common-sense case. The victim was stabbed three times. 437 N.W.2d at 58. The supreme court held that a murder resulting from multiple stab wounds is not significantly more cruel than any other intentional murder. Id. at 59. Intentional murder is cruel, even if you slip up behind an unsuspecting victim and put one fatal gunshot in the back of the victim’s head.
There is something here to the “gratuitous infliction of pain.” The victim was down, constituted no threat to appellant who got the money and the cigarettes he was after, and had the opportunity to leave. The crime was complete at that point, so sticking around and continuing to kick the victim could be viewed as a second separate assault (albeit the same victim). The sound principle of “single behavioral incident” would rightfully prevent a second separate felony charge. But having said that, the totally gratuitous kicking after the crime was complete can be looked at for sentencing purposes.
I concur in the result.