This opinion will be unpublished and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
C3-97-1894

State of Minnesota,
Respondent,

vs.

Jesus Ruben Calvillo,
Appellant.

Filed August 11, 1998
Affirmed as modified
Lansing, Judge

Clay County District Court
File No. K696984

Hubert H. Humphrey III, Attorney General, Nancy J. Bode, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Todd Webb, Clay County Attorney, Courthouse, 807 North 11th Street, Moorhead, MN 56560 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Forsberg, Judge,* and Holtan, Judge.**

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In an appeal from conviction on six related counts, Jesus Calvillo challenges the sufficiency of the evidence to prove the element of intent for attempted first and second degree murder. Alternatively, Calvillo challenges four convictions as duplicative. The evidence is sufficient to allow the jury to infer the required level of intent, but we agree that four of the convictions are included offenses and should be vacated. We affirm as modified.

FACTS

Jesus Calvillo's six convictions stem from a confrontation with Manuel Perez at the Mobile Manor Trailer Park in Moorhead. Both Calvillo and Perez lived at the trailer park and had a history of hostility. On June 16, 1996, they were both at a party held in another trailer and both were intoxicated. Perez confronted Calvillo about where he had parked and a fistfight developed, subsided, and then revived. After the fight subsided for the second time, Calvillo drove off in his truck. He returned on foot carrying a tire iron. Calvillo walked to the trailer steps where Perez was sitting, spoke to him in Spanish, and then struck him repeatedly with the tire iron.

Perez suffered a life-threatening depressed open-skull fracture from a blow Calvillo inflicted. Surgery was required to stop the interior bleeding, lift the bone of Perez's skull, and repair an injury to the brain cover that had caused release of cerebrospinal fluid. Perez was hospitalized for a week, suffered impaired short-term memory, has recurring numbness in his hands, and is at risk for seizures.

The jury convicted Calvillo of attempted first and second degree murder, first and third degree assault, and two counts of second degree assault. The district court denied Calvillo's motion for a new trial or a judgment of acquittal on the attempted first and second degree murder charges. Calvillo challenges (1) the sufficiency of the evidence on the element of intent, and (2) the entry of multiple convictions for the same criminal act.

D E C I S I O N

Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a jury could reasonably conclude that each element of the offense has been proved beyond a reasonable doubt. State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). Intent is a state of mind generally proved circumstantially through evidence from which the jury can draw reasonable inferences. State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). The jury may infer that a person intends the natural and probable consequences of his actions, and a defendant's testimony on intent is not binding on the jury if the acts demonstrate a contrary intent. Id.

Calvillo concedes that the state conclusively proved that he struck Perez at least once in the head and once in the chest with a tire iron. He disputes that the evidence, including testimony on a greater number of blows and the force of those blows, establishes beyond a reasonable doubt that he intended to kill Perez.

Witnesses who were 30 to 40 feet from Perez testified that they heard a "cracking noise" as the tire iron crushed Perez's skull. One witness testified that Calvillo took three to four swings at Perez. Another witness testified that Calvillo took five swings at Perez. Perez could not say how many times he was hit because he blacked out. Witnesses described Calvillo as wielding the tire iron with full overhead swings, and the neurosurgeon testified that the skull fracture resulted from "quite a hard hit," given that the skull is approximately one centimeter thick where it was cracked.

The nature of Perez's injuries also demonstrates the severity of the blow. Perez had to be carried from the steps, he could not walk or talk, the head wound leaked cerebrospinal fluid, he required emergency surgery for the open depressed skull fracture, the bone of his skull had to be surgically lifted, a tear in the brain covering required repair, and Perez suffered what appear to be permanent injuries. Testimony established that if the blow had been just inches in either direction toward the midline or temporal area, death would have been likely.

In addition, Calvillo's actions before and after the beating support the jury's inferences. Calvillo purposely left the party to get the tire wrench, intending to attack Perez. See State v. Bock, 490 N.W.2d 116, 120 (Minn. App. 1992) (preparation for assault by bringing baseball bat supports finding of intent to cause death), review denied (Minn. Aug. 27, 1992). After the beating, Calvillo made no attempt to aid Perez and focused on his own escape. See State v. Thompson, 544 N.W.2d 8, 12 (Minn. 1996) (evidence of callousness following the incident is consistent with findings of intent); Bock, 490 N.W.2d at 121 (failure to seek assistance for victim also indicates intent to cause death).

The jury could reasonably conclude that the natural and probable consequence of Calvillo's actions demonstrated an intent to kill, and in light of the nature and severity of the blows, the jury could permissibly conclude that the only reasonable inference is that Calvillo intended to kill Perez with the tire iron. Calvillo's claims that he did not intend to inflict serious harm on Perez are not binding when the acts demonstrate a contrary intent. Cooper, 561 N.W.2d at 179; State v. Lundstrom, 285 Minn. 130, 140, 171 N.W.2d 718, 724-25 (1969). The evidence is sufficient to support the jury's finding on the element of intent.

II

An individual may not be convicted of a lesser degree of the same offense when the act is part of the same criminal conduct. Minn. Stat. 609.04 (1996); State v. Hackler, 532 N.W.2d 559, 559-60 (Minn. 1995) (vacating conviction for assault in second degree when defendant also convicted of first degree assault for same conduct); State v. Wipper, 512 N.W.2d 92, 94 (Minn. 1994) (vacating defendant's lesser included murder convictions when defendant convicted of first degree murder for same killing).

The judgment and warrant of commitment ordered entry of conviction on all six counts, but applied the sentence to only the attempted first degree murder. On appeal it is not disputed that the attempted second degree murder resulted from the same conduct as the attempted first degree murder, and the second and third degree assaults are lesser included offenses of first degree assault. We therefore vacate Calvillo's convictions for attempted second degree murder, second degree assault, and third degree assault.

Affirmed as modified.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 2.

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