This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



David Wayne Habshi,


Filed January 19, 1999


Halbrooks, Judge

Aitkin County District Court

File No. K797315

Michael A. Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Bradley C. Rhodes, Aitkin County Attorney, Aitkin County Courthouse, 209 Second Street NW, Aitkin, MN 56431 (attorneys for respondent)

John M. Stuart, State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414; and

Phyllis J. Kirwin, Special Assistant Public Defender, 6401 University Avenue NE, Fridley, MN 55432 (attorneys for appellant)

Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Holtan, Judge.[*]



Appellant challenges his conviction of attempted murder in the first degree. Because the evidence was sufficient to support a finding of intent to kill, we affirm.


Appellant David Habshi and five others went to Gerald O'Brien's home late one October night to commit robbery. O'Brien lived alone in a secluded area; he was a father figure to appellant's mother, who took O'Brien grocery shopping a couple of times a week. In return, O'Brien provided general assistance to appellant's mother. Because appellant had been to the O'Brien residence several times before, he gave directions while another person drove.

While appellant and the others hid, two members of the group knocked on O'Brien's door. They told O'Brien that their car had broken down and asked to use his telephone. After receiving O'Brien's permission to enter, one of the assailants pretended to use the phone while the other hit O'Brien in the face with a large metal ashtray. The two assailants then beat O'Brien with the ashtray, the telephone, a brass lamp, and their fists. The plan was to injure O'Brien so that he could not recognize appellant or the other assailants. After O'Brien was knocked down, the others entered the house. Each time O'Brien looked up, he was hit in the face by one of the assailants.

Appellant and his accomplices spent approximately one hour ransacking the house. When they left, someone threw a pile of blankets over O'Brien's head so that he would not be able to see. There was an 8-10 inch pool of blood next to O'Brien's head. As they drove away from the scene, one assailant cried and expressed concern that he might have killed O'Brien. Appellant stated that he did not care if O'Brien lived or died.

The day after the crime, appellant and three others obtained cash and drugs for some of the items they took from O'Brien's home. None of the perpetrators alerted anyone to O'Brien's condition before he was found two and one-half days later by appellant's mother.

Appellant's mother, after being unable to reach O'Brien by telephone, drove to his house. The front door was open; she found O'Brien lying face down on the floor underneath a small table. The whole house was "tor[n] apart," and there was blood spattered on the window. O'Brien was shaking badly and drifting in and out of consciousness. O'Brien was later airlifted to the Twin Cities for emergency treatment.

O'Brien was comatose and suffered from massive injuries, including bleeding between the skull and brain in at least four different places, multiple rib fractures, facial bone fractures, and collapsed lungs. A surgeon testified that if O'Brien had not been found when he was, he would have died within a relatively short period of time. O'Brien was in a coma for three weeks, hospitalized for approximately two months, and then in rehabilitation for an additional two to three months. He finally returned to his home approximately five months after the robbery and assault.

A jury found appellant guilty of one count of attempted murder in the first degree while committing aggravated robbery, one count of aggravated robbery in the first degree, and one count of assault in the first degree.

Appellant argues that the evidence was insufficient for the jury to find beyond a reasonable doubt that he intended to kill O'Brien.


Where there is a challenge to the sufficiency of the evidence, our review on appeal 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 which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court will not disturb a jury verdict "if the jury * * * could reasonably conclude that a defendant was proven guilty of the offense charged." State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Appellant was convicted of attempting to cause "the death of a human being with intent to effect the death of a person or another, while committing or attempting to commit * * * aggravated robbery * * *." Minn. Stat. § 609.185(3) (1996). "[B]ecause intent is a state of mind, it is generally proved by inferences drawn from a person's words or actions in light of all the surrounding circumstances." State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996).

In reaching its conclusion, the jury may infer that a person intends the natural and probable consequences of his actions and a defendant's statements as to his intentions are not binding on the jury if his acts demonstrated a contrary intent.

State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). The supreme court has held that callousness following an incident is consistent with a finding of intent. State v. Plan, 316 N.W.2d 727, 728 (Minn. 1982); Thompson, 544 N.W.2d at 12. Failure to seek medical assistance for the victim can also indicate intent. State v. Bock, 490 N.W.2d 116, 120-21 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).

The evidence in this case shows that O'Brien was nearly beaten to death. The nature of O'Brien's injuries and the severity of the blows to his head are relevant evidence of intent to kill. See id. Further, no assailant sought medical assistance for O'Brien. Instead, they left him lying in a pool of his own blood with the door to his cabin open. O'Brien was helpless and drifted in and out of consciousness for two and one-half days.

Although appellant and his companions may have assumed that appellant's mother would eventually find O'Brien, they did not know when or if O'Brien would live that long. Moreover, appellant expressed a lack of concern for whether O'Brien lived or died.

Appellant mistakenly asserts that because no direct evidence was presented to demonstrate an intent to kill O'Brien, the jury could not reasonably find an intent to kill. But intent is a state of mind that the jury could infer from appellant's actions following the crime, including, but not limited to, appellant's callousness following the robbery. Based on all the evidence, the jury could reasonably infer appellant intended to kill O'Brien as a natural and probable consequence of his actions.

The evidence presented at trial was sufficient to support the jury's finding of intent to kill. The jury heard all the evidence and listened to the instructions. On review, this court will not disturb the jury's verdict.


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