may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Raymont Renay Osborne,
Filed December 22, 1998
Affirmed as modified
Hennepin County District Court
File No. 96059731
Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Keith Ellison, Hassan & Reed, Ltd., 2311 Wayzata Boulevard, Minneapolis, MN 55405 (for appellant)
Considered and decided by Randall, Presiding Judge, Foley, Judge,[*] and Holtan, Judge.[**]
Appellant challenges his second-degree murder conviction for the death of his son, who died of "shaken baby syndrome." He argues that the evidence is insufficient to sustain his conviction and that the district court abused its discretion when it assigned him a criminal history point for an out-of-state conviction. We affirm as modified.
The five-week-old child of appellant Raymont Renay Osborne and Rebecca Kramer died of "shaken baby syndrome" on January 29, 1996. At the time of the baby's death, Osborne, Kramer, a 16-month-old child of the couple, and the baby lived together in a one-bedroom apartment. During the early morning hours of January 22, 1996, the baby began crying, and Osborne got up to care for him. Osborne testified that after feeding and burping the baby, he laid the baby back in the crib and fell asleep for approximately one-half hour. According to Osborne, when he woke up again, he began changing the baby's diaper and then noticed that the baby was unresponsive. Osborne woke Kramer up and told her to call 911. The baby was taken by ambulance to the hospital. The baby never regained consciousness; life support was removed January 29, 1996, and the baby died soon afterward.
Osborne was charged with second-degree murder for the unintentional death of his son, resulting from an assault. A jury convicted him of the charged offense, and he received a 195-month sentence.
If the sufficiency of the evidence is challenged on appeal, a reviewing court is limited to determining whether the evidence is sufficient to support the verdict, when considered in the light most favorable to the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). If a conviction is based on circumstantial evidence, it will be upheld on appeal only when "reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Osborne concedes that his child died of shaken baby syndrome. He argues, however, that other reasonable inferences, besides his guilt, may be drawn from the evidence presented at trial. He insists that it is possible that Kramer, or someone else, shook the baby, causing the baby's death. He also asserts that the state introduced no evidence that he actually committed a third-degree assault (the felony underlying his second-degree murder conviction) against the baby.
Osborne testified that he fell back to sleep after feeding the child and may have slept for a half an hour. Conceivably, Kramer could have shaken the baby while Osborne was asleep. Kramer testified, however, that she woke up when the baby began crying but fell back to sleep after Osborne got up to care for the baby and did not wake up again until Osborne woke her to call 911. Further, Kramer and other witnesses testified that Osborne told them that he did not go back to sleep before he noticed the baby had become despondent. Therefore, it is possible that the jury did not believe Osborne's testimony that he fell asleep after feeding the baby and/or that the jury believed Kramer's testimony that she did not wake up between the time Osborne got up to care for the baby and when he woke her to call 911. See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (stating appellate court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary").
Osborne also asserts that it is possible Kramer or someone else shook the baby earlier in the day and the onset of symptoms did not occur until Osborne noticed them in the night. Osborne emphasizes that his expert witness, Dr. Mark Taff, a forensic pathologist, testified that the time between the injury and the onset of symptoms could have been up to 24 hours.
Three of the state's expert witnesses testified regarding the time between the baby's injuries and the onset of symptoms. These experts included a pediatrician who examined the baby while the baby was in intensive care, an assistant medical examiner who performed an autopsy on the baby, and an assistant medical examiner who examined the baby's brain after the autopsy. All three of these witnesses testified that the baby died as a result of a diffuse axonal injury to the brain, and all testified that there would have been an immediate onset of symptoms resulting from this injury.
In State v. Ostlund, 416 N.W.2d 755 (Minn. App. 1987), review denied (Minn. Feb. 24, 1988), this court affirmed a second-degree murder conviction for the death of a child caused by shaking. There, the state presented six expert witnesses who testified that the child died as a result of shaking, and the defense presented six expert witnesses who testified that the child's injuries did not result from shaking. Id. at 758-60. This court recognized:
"Where the opinions of reputable doctors have a reasonable basis on the facts, it must be left to the trier of facts to say who is right when other doctors have conflicting opinions. * * * [T]he credibility of the witnesses and the weight to be given their testimony, whether it be opinion testimony or otherwise, is for the trier of fact."
Id. at 760 (quoting Freeman v. Matson, 230 Minn. 261, 271, 41 N.W.2d 249, 255 (1950)).
Here, although Dr. Taff did testify that the onset of symptoms could have occurred as much as 24 hours after the time of the injury, three other expert witnesses testified that the onset of symptoms would have been immediate. As in Ostlund, the jury was free to believe either the defense expert or the state's experts. The jury chose to believe the state's experts. See Moore, 438 N.W.2d at 108 (stating appellate court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary").
Based on the state's witnesses' testimony, the "reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt." Alton, 432 N.W.2d at 756. Therefore, we uphold Osborne's conviction.
Absent an abuse of discretion by the district court, a reviewing court shall not reverse a district court's decision regarding whether an out-of-state conviction is designated a felony in calculating a defendant's criminal history score. Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992). Osborne argues that the district court abused its discretion by determining that his Colorado conviction for contributing to the delinquency of a minor warranted a felony point.
"The designation of out-of-state convictions as felonies, gross misdemeanors, or misdemeanors shall be governed by the offense definitions and sentences provided in Minnesota law." Minn. Sent. Guidelines II.B.5. "[S]entencing courts should consider the nature and definition of the foreign offense, as well as the sentence received by the offender." Minn. Sent. Guidelines cmts. II.B.505.
The state must establish by a fair preponderance of the evidence that the prior conviction was valid, the defendant was the person involved, and the crimes constituted felonies in Minnesota.
State v. Jackson, 358 N.W.2d 681, 683 (Minn. App. 1984) (citations omitted).
The only information on Osborne's Colorado conviction contained in the district court file is the sentencing worksheet, which lists that Osborne was sentenced for contributing to the delinquency of a minor in May 1993, and a statement by the district court during the sentencing hearing that Osborne had a Colorado conviction for "contributing to the delinquency of a minor." The state has submitted an appendix containing a number of documents related to Osborne's Colorado conviction. With the exception of the sentencing worksheet, none of these documents are contained in the district court file. The state concedes that this information is not in the file but insists that the district court requested the information and relied on it in making its sentencing decision. The district court stated at sentencing:
I have read Ms. Spigner's probation report and, noting that Mr. Osborne has two felony points, one for custody status on the Colorado parole [sic] and the other for the Colorado convictions, I took it upon myself to request of Ms. Spigner that she provide me with the reports of the Colorado offenses.
The reason for that is that one of those convictions is Contributing to a Delinquency of a Minor, which in Minnesota is usually a misdemeanor. It also is an offense that carries a great range of behaviors, and before I counted that Colorado conviction as a point under the Minnesota Guidelines, I wanted to be very certain that the conduct prescribed there would amount to a felony sentence in Minnesota, and it's clear to me, having reviewed that file, that the offense would be a felony in Minnesota and that the Colorado sentence is pretty much in keeping with what I would expect for a conviction of like kind in Minnesota.
So both technically -- that is, under the strict rules, which are that we count convictions based on the amount of time given as sentence for those convictions, and on the Court's independent review of the circumstances of that case, it does seem fair and legal to give Mr. Osborne one point for that, for those Colorado convictions.
It was the state's burden to ensure the Colorado information was contained in the district court file. Id. (recognizing state has burden to establish "the facts necessary to justify consideration of out-of-state convictions used to determine a defendant's criminal history score"). Even if the state did not discover the missing documents until the case was filed with this court, pursuant to Minn. R. Civ. App. P. 110.05, the state could have made a motion to have a supplemental record "approved and transmitted" to this court.
Disregarding the information in respondent's appendix, the district court erred by determining that Osborne should receive a felony point for his Colorado conviction for contributing to the delinquency of a minor. In Minnesota, contributing to the delinquency of a minor is a misdemeanor and is defined as:
Any person who by act, word or omission encourages, causes, or contributes to the need for protection or services or delinquency of a child, or to a child's status as a juvenile petty offender, is guilty of a misdemeanor.
Minn. Stat. § 260.315 (1996). A misdemeanor in Minnesota is punishable by a sentence of up to 90 days in jail and/or a fine of up to $700. Minn. Stat. § 609.02, subd. 3 (1996). Under Colorado law:
Any person who induces, aids, or encourages a child to violate any federal or state law, municipal or county ordinance, or court order commits contributing to the delinquency of a minor.
Colo. Rev. Stat. § 18-6-701(1) (1998). This is a class four felony in Colorado, which has a presumptive sentence range of two to eight years' imprisonment and a $2000 to $500,000 fine. Colo. Rev. Stat. §§ 18-6-701(2), 18-1-105(1)(a)(III)(A), 18-1-105(1)(a)(IV) (1998).
Considering the offense definition and sentence under Minnesota law, as the sentencing guidelines require, the Minnesota and Colorado definitions of contributing to the delinquency of a minor are similar, although the presumptive sentence is higher in Colorado. The actual sentence Osborne appears to have received is similar to Minnesota's punishment for a misdemeanor. It is evident that Osborne was put on probation for the Colorado conviction because he received (and does not challenge) a custody status point for being on probation at the time he committed the offense he was convicted of in this case. Also, Osborne could not have spent more than three months in jail as the sentencing worksheet states that he was sentenced in May 1993 and Kramer testified that she met Osborne in Minnesota in August 1993. The nature of the actual offense is not contained in the district court file. On the evidence contained in the record, the district court erred by classifying Osborne's prior conviction as a felony.
Even if we consider the information supplied by the state on appeal but not contained in the file, the district court abused its discretion. According to the documents in the state's appendix, Osborne was charged with two counts of contributing to the delinquency of a minor. The charge for both counts states:
On or about May 4, 1991, * * * Raymont Renay Osborne * * * unlawfully and feloniously induced, aided, and encouraged * * * a child[ ] to violate a State law, to-wit: C.R.S. 18-13-122, namely, Illegal Possession or Consumption of Ethyl Alcohol by an Underage Person; In violation of Colorado Revised Statutes 18-6-701, as amended, Contributing to Delinquency of a Minor (F-4).
Osborne pled guilty to one count and was sentenced to four years' probation, 90 days in jail, and fines, fees, and restitution totaling $2,729.29. According to these documents, Osborne's charge for contributing to the delinquency of a minor alleges that he provided a minor with alcohol. In Minnesota, it is a gross misdemeanor, not a felony, to provide alcohol to someone under age 21. Minn. Stat. §§ 340A.503, subd. 2(1) (Supp. 1997), .702 (8) (1996).
The affidavit supporting the Colorado complaint, which is contained in the state's appendix but not in the district court's file, alleges that Osborne and three other men provided alcohol to two minor girls and raped the girls. Any consideration by the district court of these allegations constituted an abuse of discretion because these allegations were never charged, proven, or admitted.
Regardless of whether this court considers the information in the state's appendix, we conclude the district court erred by assigning Osborne a criminal history point for his out state conviction for a crime that would be either a misdemeanor or a gross misdemeanor in Minnesota. Thus, we modify Osborne's sentence to 165 months, the presumptive sentence for unintentional, second-degree murder with one criminal history point.
Affirmed as modified.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[**] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 The state notes that the district court mistakenly sentenced Osborne to 195 months, the presumptive sentence for unintentional, second-degree murder with three criminal history points. It is clear from the sentencing hearing transcript that the district court intended to sentence Osborne to the presumptive sentence for unintentional, second-degree murder with two criminal history points, which, pursuant to Minn. Sent. Guidelines IV, has a presumptive sentence of 180 months.