This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-364

State of Minnesota,

Respondent,

vs.

Craig Steven Sykes,

Appellant.

Filed December 31, 1996

Affirmed

Klaphake, Judge

LeSueur County District Court

File No. K3-95-323

Hubert H. Humphrey, III, Attorney General, Carol J. Bennett, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Donald Spartz, Le Sueur County Attorney, Le Sueur County Courthouse, 88 South Park Avenue, Le Center, MN 56057 (for Respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

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

KLAPHAKE, Judge

Craig Steven Sykes appeals from his conviction for first-degree manslaughter in connection with the death of his friend, Gary Sumbs. Because the evidence supports finding that Sumbs's death was reasonably foreseeable during the fight between the two men, we affirm.

D E C I S I O N

In a challenge to the sufficiency of the evidence, this court's review[1] is limited to

ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.

State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978) (citations omitted). We must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

A person is guilty of first-degree or "misdemeanor" manslaughter if he

causes the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death or great bodily harm to any person was reasonably foreseeable, and murder in the first or second degree was not committed thereby.

Minn. Stat. § 609.20(2) (1994). Importantly, and as the trial court instructed the jury in this case, "[i]t is not necessary for the State to prove any intent on the part of the defendant to kill anyone." The state only needed to show that appellant used such force or violence that death or great bodily harm to Sumbs was "reasonably foreseeable." Id. Whether a defendant can reasonably foresee that death or great bodily harm may result from certain conduct is a fact question. State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993). In making this factual determination, the jury is "'entitled to make reasonable inferences from the evidence, including inferences based on their experiences or common sense.'" Id. (quoting State v. Filippi, 335 N.W.2d 739, 742 (Minn. 1983)).

Appellant argues that the evidence failed to prove that death or great bodily harm was foreseeable. He insists that Sumbs's death might have occurred in as little as 30 seconds, and that he could not have foreseen that Sumbs would die of manual strangulation as a result of appellant sitting on him and holding him down.

However, the record contains ample evidence to support the conviction. That evidence includes the medical examiner's testimony that the marks on Sumbs's body showed he died from manual strangulation administered not by Sumbs's arm being pulled across his neck but by one or two hands being placed on or around his neck; appellant's own testimony that he had his hand on the back of Sumbs's neck and was pushing it down even though Sumbs was not resisting; the testimony of Sumbs's girlfriend that while appellant had Sumbs face down on the ground, appellant's wife was screaming at appellant to stop choking Sumbs and warning appellant that he was going to kill Sumbs; and the testimony of other witnesses to the events that night who stated that appellant was disorderly, swearing loudly at others, and an aggressive participant in the fight with Sumbs.

Unlike pointing a gun at someone and firing it, the act of placing one's hand on another's neck or throat is not in itself likely to cause death or even serious injury; it is the manner in which the hand is applied--the amount of force and pressure and the length of time--that determines the likelihood that death or serious bodily harm will result. State v. Lundstrom, 285 Minn. 130, 141, 171 N.W.2d 718, 725 (1969) (inference of intent to cause death from act of placing hand on neck of another depends on manner in which hand placed). Based upon the amount of force appellant used during the fight and while he was on top of Sumbs with his hand on his neck, the jury could find that death or great bodily harm to Sumbs was reasonably foreseeable.

Appellant has filed a pro se supplemental brief in which he recites his version of the events and portrays Sumbs and his girlfriend as the aggressors. Again, the jury was entitled to believe the state's witnesses and disbelieve any evidence to the contrary. See Bias, 419 N.W.2d at 484. Appellant also requests that we review the sentencing court's comments characterizing appellant as the aggressor and suggesting punishment was appropriate. We find nothing inappropriate in the court's comments. Nor can we conclude that the court abused its discretion in its determination of appellant's criminal history score or in its imposition of the presumptive sentence. See State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); Bolstad v. State, 439 N.W.2d 50, 53 (Minn. App. 1989).

Affirmed.

[ ]1Appellant argues that a stricter standard of review applies here because the evidence presented was "entirely circumstantial." We disagree. The evidence in this case was almost entirely direct, including both eyewitness testimony and physical evidence. See 10 Minnesota Practice, CRIMJIG 3.05 (1990) (defines direct and circumstantial evidence).