This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Nathaniel Darnell Vasser,
Filed December 11, 2007
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 05083691
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 S. 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.
Following a jury trial, appellant Nathaniel Darnell Vasser was convicted of domestic assault by strangulation and making terroristic threats under Minn. Stat. §§ 609.2247, 609.713, subd. 1 (2004). A sentencing jury was thereafter impaneled and answered “yes” to the question of whether the victim’s 21-month-old child was present during the commission of the offenses. At sentencing, the district court imposed the presumptive guidelines sentence of 33 months for domestic assault by strangulation and imposed an upward durational departure from the presumptive 33-month sentence to 44 months on the terroristic threats conviction, citing the aggravating factor that the victim was more vulnerable because her child was present.
Because the definition of “assault” was included in the instruction for domestic strangulation, the district court did not commit plain error by failing to repeat that definition when instructing the jury on terroristic threats and the “crime of violence.” We therefore affirm the convictions. But because the state concedes that the two offenses are part of the same behavioral incident under Minn. Stat. 609.035 (2004), and because the instructions given to the sentencing jury were defective, we reverse and remand for resentencing. Finally, we have reviewed the arguments made by appellant in his pro se supplemental brief and find them to be without merit.
District courts are given considerable latitude in the selection of language for jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). Claims of error must show that the instructions, considered as a whole, materially misstate the law. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). Unobjected-to error can be reviewed only if it constitutes plain error affecting substantial rights. Minn. R. Crim. P. 31.02; see State v. Martinez, 725 N.W.2d 733, 738-39 (Minn. 2007).
Appellant argues that the district court failed to properly instruct the jury on the definition of “assault” as the “crime of violence” in connection with the making of a terroristic threat. In particular, the jury was instructed as follows:
The elements of making a terroristic threat are, first, the defendant threatened, directly or indirectly, to commit a crime of violence. You are instructed that assault is a crime of violence. It need not be proven that the defendant had the actual intention of carrying out the threat.
See 10 Minnesota Practice, CRIMJIG 13.107 (2006).
The state correctly notes that the jury had been properly instructed on the definition of assault when it received instructions on the elements of domestic assault by strangulation. Appellant nevertheless insists that the court’s failure to define assault again was confusing and misleading, and that the jury likely believed that the “crime of violence” element had been proved.
But the jurors were specifically told that jury instructions are to be considered as a whole, and there was no reason for the jury to believe that “assault” meant something different in the terroristic threat instruction than it meant in the domestic assault instruction. See Flores, 418 N.W.2d at 155. Minnesota courts have allowed the use of a definition stated in one part of jury instructions to clarify another part. See, e.g., State v. Gisege, 561 N.W.2d 152, 160 (Minn. 1997); State v. Axilrod, 248 Minn. 204, 211-12, 79 N.W.2d 677, 683 (1956). Indeed, as the state notes, “[p]erhaps defense counsel preferred defining assault for the jury only once in the instructions, as opposed to twice, so that other topics [such as] the presumption of innocence and proof beyond a reasonable doubt, occupied a proportionally greater share of the instructions.” When considered as a whole, the jury instructions do not materially misstate the law.
Appellant further argues that the instructions should have identified the specific threat to be considered by the jury. But such an instruction was unnecessary under the facts of this case: it was assumed by both parties that the threat involved appellant’s statements to the victim that he could just knock her out and take the child away. We therefore conclude that appellant has failed to prove that the district court committed plain error that affected appellant’s substantial rights. Appellant’s convictions of terroristic threats and domestic assault by strangulation are affirmed.
Appellant next raises a number of alternative arguments relating to sentencing and to the sentencing proceedings. Because we agree that the matter must be reversed and remanded for resentencing, we address only the first issue involving whether the interrogatory submitted to the sentencing jury was proper. See State v. Dettman, 719 N.W.2d 644, 655 (Minn. 2006) (remanding to district court for resentencing and declining to reach defendant’s alternative arguments regarding sentencing).
The sentencing jury was asked to answer the following question: “Was a child present when the defendant either committed domestic assault by strangulation or made terroristic threats or both?” Defense counsel’s objection was overruled, and the jury answered “yes” to the interrogatory.
At sentencing, the state argued that appellant should receive an upward departure because the presence of the child “made the victim particularly vulnerable.” The state further argued that the victim testified that she could not leave, and she repeatedly said she was not going to leave her baby. Defense counsel again objected and asked for imposition of the presumptive guidelines sentencing, noting that vulnerability was not properly before the jury.
In imposing an upward departure, the district court reasoned:
I’m imposing this because the jury did find in a special interrogatory that this offense was committed in the presence of a child.
As [the prosecutor] noted in his memorandum, this was not simply a neutral factor, it was one which aggravated the circumstances because of the fact that the victim felt that she could not leave the house because she did not feel that she could leave the child, and for that reason I believe that an upward durational departure is appropriate based on the facts of the case and the jury special finding in the interrogatory.
Departures have been upheld based on the proximity of a victim’s child to the offense, because that proximity makes the parent particularly vulnerable. See State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992); State v. Dalsen, 444 N.W.2d 582, 584 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989).
Appellant argues that the district court and the state misunderstood the sentencing jury’s role under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). He insists that the sentencing jury must render a verdict based on whether a specific aggravating factor was proved. Here, the aggravating factor was not the presence of a child; rather, the aggravating factor was whether the victim was particularly vulnerable because her child was present during the commission of the offense.
Although cases applying Blakely have not been clear on exactly what type of instructions or interrogatories need to be given to sentencing juries, we conclude that the district court erred when it presented the underlying fact issue but failed to present the aggravating factor itself, either in its instructions to the jury or in the wording of its interrogatory. In State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006), the defendant was charged with theft by swindle after he convinced an 80-year-old man to give him money. After the jury found him guilty, the district court reconvened the jury for sentencing; the court instructed the jury on the aggravating factor of victim vulnerability under the guidelines, which allows departure if the victim was particularly vulnerable due to age or infirmity. See Minn. Sent. Guidelines II.D.2.b.(1). The court further instructed the jury that if it found “that both these elements have been proved beyond a reasonable doubt,” then the victim was vulnerable and the jury should answer the special interrogatory “yes.” Chauvin, 723 N.W.2d at 23. The supreme court upheld the use of the sentencing jury in this manner and affirmed the district court’s decision to sentence the defendant to double the presumptive sentence based on the jury’s finding that the victim was vulnerable. Id.
The newly drafted jury instructions include reference to the specific aggravating factor sought to be proved: the verdict form does not ask the jury to merely find facts underlying an aggravating factor; rather, the jury is asked to deliberate on the existence of an aggravating factor and not just on whether certain facts were proved. See 10 Minnesota Practice, CRIMJIG 8.01, Special Verdict Forms, CR8-SVF (2006). The jury instructions and interrogatory given here were inadequate because they did not refer to the aggravating factor of victim vulnerability. We therefore reverse and remand for resentencing.
In his pro se supplemental brief, appellant raises a number of issues. First, appellant asserts that his public defender did not represent him to the best of his ability because he failed to assign an investigator to appellant’s case and because he met with appellant only three or four times. But appellant’s case was not complicated—the state called only two witnesses: the victim and the police officer who responded to the 911 call. Appellant does not identify what evidence could have been uncovered by an investigator, nor does he explain what type of trial strategy he and his attorney could have formulated had they met more frequently. Appellant has not met his burden to show that his attorney’s representation “fell below an objective standard of reasonableness.” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).
Appellant also argues that (1) the evidence is insufficient to support his conviction of domestic assault by strangulation because the state failed to prove that he intended to strangle J.E.; (2) he was entitled to claim self-defense because J.E. repeatedly told the jury that appellant thought that she had set him up to be shot; and (3) he should not have received the upper end of the presumptive range for domestic assault by strangulation. We have thoroughly considered these arguments and find them to be without merit.
Affirmed in part, reversed in part, and remanded.
 The state concedes that the district court erred in sentencing appellant to concurrent sentences because the offenses in this matter were part of a single behavioral incident. See Minn. Stat. 609.035 (2004); State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). Thus, on remand, appellant should be sentenced on only one offense.