This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-270

State of Minnesota,

Respondent,

vs.

Jermaine Earl Givins,

Appellant.

Filed November 19, 1996

Affirmed

Amundson, Judge

Ramsey County District Court

File No. K9-95-1339

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Leslie J. Rosenberg, Special Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellant Jermaine Givins contends that the state failed to prove beyond a reasonable doubt that he did not act in self-defense. He also contends that the trial court abused its discretion in giving the jury instructions for manslaughter, a lesser-included offense, and in denying his request for a downward departure. We affirm.

FACTS

On April 25, 1995, while taking care of his three-year-old daughter, appellant Jermaine Givins received a page about buying a car from a person he knew only as Mikey. Givins returned the call and borrowed his friend's Chevy Blazer to go to an apartment complex to meet Mikey. Givins had his daughter in the back seat, $1000 cash in his pocket, and a gun in the waistband of his pants. Givins testified that he brought the gun because he knew Mikey was a gang member, and he wanted to be able to protect himself.

Mikey was a member of the Five Deuce Broadway Gangster Crips and was known by at least three different names. He was known to local police for his involvement in drug trafficking and had been implicated in the deaths of three police officers in Los Angeles. Givins knew Mikey because one of Givens's cousins had married someone in Mikey's gang.

When Givins arrived at the apartment complex, he noticed that Mikey and other gang members were going in and out of the building. He then observed one of the gang members get into, and drive off in, the car he expected to buy.

Mikey then approached Givins's car and got in on the passenger side. Givins asked about the car, and Mikey said that it would be right back. According to Givins, he then showed Mikey the money he had brought to purchase the car. Mikey then pulled a gun out of his jacket and told Givins to give him the money. Givins testified that he pleaded with Mikey and said that his daughter was in the back seat. Mikey then told Givins to throw the money on the floor, which he did. Givins testified that, when Mikey put the gun closer to him, Givins grabbed the barrel of the gun, and the two men struggled. Givins claimed that Mikey punched him in the face a few times before the clip fell out of the gun. At that point, Givins testified that he thought it would be a good idea to get out of the Blazer and make a scene.

As Givins was trying to get out of the vehicle, Mikey was apparently trying to pull him back in. During this struggle, the gun that Givins was carrying fell to the ground. When Givins picked it up, Mikey apparently closed the door, yelled that he had the baby, and attempted to drive away. Givins testified that he yelled at Mikey to get out of the Blazer, and, when Mikey started to drive away, he fired two shots through the windshield at Mikey. Givins then ran up to the driver side window and fired at least three more shots into the vehicle.

Givins testified that he saw Mikey's feet go up in the air and did not see any other movement inside the vehicle. He ran to the then rolling vehicle, opened the door, pulled Mikey out, got in and drove out of the apartment complex, running over Mikey as he left. Givins testified that he did not intend to kill Mikey, only to stop the vehicle.

The medical examiner confirmed that Mikey, later identified as Kenneth Washington, died from loss of blood due to multiple gunshot wounds. The medical examiner also confirmed that there was a large abrasion on Washington's head, where the skin and tissue had been "rubbed away."

Givins testified that he was going to go to his grandmother's house after the shooting because his daughter would be safe there and his grandmother would tell him what to do. He did not stay at the apartment because he was afraid that other gang members would be coming after him.

After hearing the call of shots fired, a police officer on Highway 61 noticed a Chevy Blazer with two holes in the windshield. When Givins realized the officer was attempting to stop him, he put both guns (his and Mikey's) under the back seat of the vehicle. As soon as the officer stopped the vehicle, Givins told him that he had shot Mikey to prevent him from harming his daughter. One of the officers then checked on Givins's daughter, who was unharmed in the back seat.

After his arrest, Givins cooperated with police, but lied to them about bringing a gun to the scene. He testified that he lied about the gun because he was afraid of going to trial and to jail. Givins repeatedly told the officers that he shot Mikey because he believed that Mikey was going to harm his daughter. He also stated several times that Mikey tried to rob him.

Givins was charged with second-degree murder. The trial court, over the objection of both attorneys, gave the jury an instruction on first-degree manslaughter, heat of passion. The jury acquitted Givins of second-degree murder and convicted him of first-degree manslaughter. The judge denied Givins's request for a downward departure and sentenced him to the presumptive sentence of 86 months. This appeal followed.

D E C I S I O N

I. Sufficiency of the Evidence

Givins contends that the state failed to prove beyond a reasonable doubt that he did not act in self-defense.

When a party challenges the sufficiency of the evidence on appeal, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict that they did. See State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Once a self-defense claim is raised, the state has the burden to establish beyond a reasonable doubt that the killing was not justifiable. State v. Braylock, 501 N.W.2d 625, 628 (Minn. 1993).

According to Minnesota law, intentionally taking the life of another is only authorized

when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.

Minn. Stat. § 609.065 (1994).

In this case, witnesses for the state testified that they saw Givins and the victim struggling outside the vehicle, saw the victim get into the vehicle, saw Givins pull out a gun and shoot through the windshield and driver side windows at the victim. None of the witnesses saw the victim with a gun. In addition, the testimony of the police officers indicated that Givins, while making a statement, said he shot at the victim because he was being robbed. Further, during the state's cross-examination of Givins, Givins stated that he took a gun with him because he was nervous about going to this apartment complex. He also stated that, although he became more nervous when he saw gang members going in and out of the building, he did not leave.

Thus, the state presented evidence that would allow the jury to conclude that Givins shot at the victim, not because his daughter was in the vehicle, but because the victim was trying to steal his money and his vehicle. The only evidence Givins presented in support of his theory of self-defense was his own testimony. The jury was not required to credit this testimony. See State v. Fidel, 451 N.W.2d 350, 354 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).

II. Jury Instruction

Givins contends that the trial court abused its discretion by giving a jury instruction on the lesser-included offense of first-degree manslaughter over the objection of both attorneys.

The determination of whether to submit a lesser-included offense to the jury lies within the sound discretion of the trial court. Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986). The test is two-fold: whether the offense is an "included" offense under Minn. Stat. § 609.04 and whether there is a "rational basis" to find the defendant not guilty of the charged or greater offense and to convict him of the lesser included offense. State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994).

In this case, neither party contends that manslaughter is not an appropriate lesser-included offense of second-degree murder. Both attorneys argued that he was not provoked by the words or actions of the victim, but rather that he acted intentionally. The trial court, in response to those arguments stated:

But I do tell you right now my belief that there is evidence here that either this was valid self-defense or if not, then it was a reaction done in the heat of passion. And the defendant's testimony could not have made that more clear when he talked about his panic. And I think it's up to this jury to decide whether that type of panicking warrants the death that was involved here or whether or not it excuses it. If the panic is self-defense, the defendant will prevail on both counts. If it's unreasonable, then he would be found guilty of one or the other.

The record indicates that Givins acted in response to the victim's acts of getting in the vehicle and trying to drive away. Givins testified that he panicked and did not think he had any option but to take the action he did. During closing arguments, counsel for Givins described his actions as taking place in a split second, such that he did not have an opportunity to think about his options. In light of those facts, it would not be irrational for the jury to conclude that Givins had not acted in self-defense, but rather in the heat of passion. Thus, the trial court did not abuse its discretion in giving the jury instruction on first-degree manslaughter.

III. Sentencing Departure

Givins contends that the trial court abused its discretion in denying his request for a downward departure.

The decision to depart from the sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981). The supreme court has indicated that it would be a "rare case" that would justify reversing a trial court's decision not to depart from the guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

According to the Sentencing Guidelines, a trial judge may depart from the presumptive sentence if there are substantial and compelling circumstances. Minn. Sent. Guidelines II.D. Some of the factors that may be considered as reasons for departing are: 1) the victim was an aggressor; 2) the offender played a minor or passive role in the crime; 3) the offender lacked substantial capacity for judgment; and 4) "[o]ther substantial grounds exist which tend to excuse or mitigate the offender's culpability, although not amounting to a defense." Minn. Sent. Guidelines II.D.2.

Givins moved for a downward dispositional departure, or, in the alternative, a downward durational departure. In support of that motion, counsel for Givins cited his improved attitude, his cooperation with and respect for the court, his remorse, his understanding that he used poor judgment, his family's support, and his potential to get a job and do well.

Although the record indicates that Givins was cooperative, expressed remorse, and demonstrated the ability to hold a job, the presentence investigation recommended that the presumptive sentence be imposed. The presentence investigator stated that Givins was not amenable to probation and that there were no mitigating factors.

The conflicting circumstances of this case do not create one of those rare situations that require this court to interfere with the trial court's exercise of discretion.

Affirmed.