This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Ray Louis Marshall,


Filed July 20, 1999


Halbrooks, Judge

Ramsey County District Court

File No. K6981913

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for appellant)

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

U N P U B L I S H E D   O P I N I O N


Appellant Ray Louis Marshall pleaded guilty to criminal vehicular homicide and was sentenced to an executed prison term of sixty-nine months, a twenty-one month upward durational departure from the presumptive sentence. Appellant argues the departure was an abuse of the sentencing court's discretion. Because we conclude substantial and compelling circumstances justify the departure, we affirm.


On May 15, 1998, appellant Ray Louis Marshall spent the evening drinking and smoking crack cocaine with some friends including Nanette Henderson, his girlfriend of five and one-half years. Although Henderson had obtained an order for protection against appellant, and that order was in effect, the two were sharing an apartment at the time.

At approximately 11:30 p.m., appellant decided to leave the apartment. Henderson did not want him to go. She followed appellant and attempted to stop him from leaving, but appellant drove away in a rented U-haul truck and turned into an alley. As appellant drove down the alley, Henderson jumped on the hood of the truck. Appellant hit the brakes so she would fall off the truck. According to appellant, Henderson got up and came around to the driver's side window where they exchanged some words before she turned and walked away. He then drove a short distance before looking in his rear-view mirror and noticed her lying in the alley. Appellant had some neighbors call an ambulance, and he remained at the scene until the police and paramedics arrived. Henderson was transported to the hospital, but died early the next morning.

Appellant was administered a preliminary breath test at the scene which showed a blood alcohol concentration of .137. Appellant was then arrested and transported to the police station where a second breath test revealed a blood alcohol content of .17.

Appellant pleaded guilty to criminal vehicular homicide. Susan Roe, M.D., the Assistant Ramsey County Medical Examiner who conducted Henderson's autopsy, testified at the sentencing hearing that Henderson's injuries included two skull fractures which, combined with the resulting brain swelling, were probably fatal. Dr. Roe opined that the skull fractures were consistent with Henderson being thrown from the hood of a truck moving at a moderate speed.

In addition to the head injuries, Dr. Roe testified Henderson suffered a fractured pelvis, rib fractures on both sides, a tear in the soft tissue between the bronchi, two tears of the liver and multiple tears of the bowel. There was also a mark on the left leg consistent with a tire tread. Dr. Roe testified these injuries were consistent with being run over by the truck. Dr. Roe further opined that Henderson could not have stood up after receiving those injuries.

Marsha Stainer, Henderson's former employer, and Kimberly Newville, Henderson's sister, also testified at sentencing. Stainer testified that Henderson came to work with multiple bruises, black eyes, hair ripped out of her head, stitches, and a broken nose. Henderson told Stainer the injuries were from beatings inflicted on her by appellant. Stainer estimated this occurred ten or fifteen times in less than three years. Newville also testified to the violent nature of the relationship. She testified Henderson told her about incidents where appellant beat her unconscious with a telephone receiver and beat her in the face with a belt.

The district court sentenced appellant to an executed term of 69 months imprisonment, a 21-month upward durational departure from the presumptive term. The district court cited its reasons for the departure as: (1) particular cruelty; (2) extreme recklessness; and (3) violation of a protection order. This appeal followed.


This court reviews departures from presumptive sentences under an abuse of discretion standard, but there must be "substantial and compelling circumstances" in the record justifying a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). This court will overturn the decision of the district court upon reaching a "collegial conclusion" that a sentence is disproportional to the severity of the crime. State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981). A sentencing court should consider whether the defendant's conduct was "significantly more or less serious than that typically involved in the commission of the crime in question." State v. Back, 341 N.W.2d 273, 276 (Minn. 1983). Appellant argues "particular cruelty" may not be considered as an aggravating factor in this case because it involves the intent to harm. Appellant was convicted of criminal vehicular homicide in violation of Minn. Stat. § 609.21, subd. 1 (1996), which provides:

A person is guilty of criminal vehicular homicide resulting in death and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if the person causes the death of a human being not constituting murder or manslaughter as a result of operating a motor vehicle:

* * * *

(3) while having an alcohol concentration of 0.10 or more[.]

"`Particular cruelty' is not applicable to conduct which, however reckless, is not done with intent to harm." State v. Bicek, 429 N.W.2d 289, 292 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988). By definition, criminal vehicular homicide does not include the intent to harm. Therefore, consideration of "particular cruelty" as an aggravating factor was inappropriate here.

Appellant also argues the district court abused its discretion by citing appellant's "extreme recklessness" as an aggravating factor because it is an element "of alleged offender behavior not within the definition of the offense of conviction." Minn. Sent. Guidelines cmt. II.D.103. Criminal vehicular homicide is defined in part as an act, causing death, "not constituting murder or manslaughter * * * ." Minn. Stat. § 609.21, subd. 1. Second-degree manslaughter includes an element for "culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death * * * ." Minn. Stat. § 609.205(1) (1996); see also State v. Jude, 554 N.W.2d 750, 754 (Minn. App. 1996) (defining reckless as including "a subjective element of actual conscious disregard of the risk created by the conduct"). Because appellant was charged with and convicted of criminal vehicular homicide, recklessness, an element of a separate crime not charged, should not have been considered as an aggravating factor. See State v. Ott, 341 N.W.2d 883, 884 (Minn. 1984) (evidence supporting another offense, but not supporting the notion that the convicted offense was committed in a serious way, may not be used as an aggravating factor).

Appellant further argues the district court abused its discretion by considering the violation of a protection order as an aggravating factor. While acknowledging that violation of an order for protection may be considered as an aggravating factor for purposes of an upward durational departure, see State v. Coley, 468 N.W.2d 552, 556 (Minn. App. 1991); State v. Lewis, 385 N.W.2d 352, 357 (Minn. App. 1986), review denied (Minn. May 29, 1986), appellant contends to do so was inappropriate in the present case because Henderson and appellant were living together and spent the evening of this incident together consensually. Appellant attempts to distinguish Coley and Lewis based on the fact that the offenders in those cases violated the restraining order by seeking their victims out in order to commit the offense. See Coley, 468 N.W.2d at 554; Lewis, 385 N.W.2d at 353-54.

But the Coley court specifically identified violation of the restraining order as a separate and distinct basis for an upward departure. Coley, 468 N.W.2d at 556. Furthermore, appellant's argument ignores the cyclical nature of the abusive relationship. Although appellant may never have sought Henderson out in order to beat her, he did beat her. In recognition of this dynamic, the order for protection placed all of the responsibility for any violation on appellant. The order, in part, recites:

YOU, THE [APPELLANT], MUST NOT enter or stay at [Henderson's] residence, even if [Henderson] or some other person invites you to do so. Any time you are found in [Henderson's] dwelling, you are in violation of this order. [Henderson] cannot excuse this provision of the order. UNDER NO CIRCUMSTANCE does [Henderson] violate this order if you are found in the dwelling.

(Emphasis in original.) Appellant violated the order. Under these facts, we conclude this violation was sufficient to show substantial and compelling circumstances justifying the district court's durational departure.

We further conclude the departure was justified because of Henderson's particular vulnerability. See State v. Elvin, 481 N.W.2d 571, 576 (Minn. App. 1992) (holding particular vulnerability of a domestic abuse victim is an accepted basis for departure), review denied (Minn. Apr. 29, 1992); see also Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (reviewing court may affirm departure based on reason not considered below if supported by evidence in the record). Henderson's vulnerability to appellant was substantial. Despite the fact that he physically abused her at least 10-15 times over less than three years causing her to obtain an order for protection, she allowed the relationship to resume. Moreover, on the night of the offense, she did not want him to leave. She was so desperate for him to stay she threw herself on the hood of the truck he was driving. By his own admission, he applied the brakes in such a manner as to cause her to fall off the vehicle. Under these facts, the district court's durational departure was justified.