This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-98-1518

State of Minnesota,

Respondent,

vs.

Richard Joseph King,

Appellant.

Filed August 24, 1999

Affirmed as modified

Randall, Judge

Hennepin County District Court

File No. 97-095352

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

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Norton, Judge.[*]

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant was convicted of two counts of attempted first-degree murder, two counts of first-degree burglary, four counts of kidnapping, one count of first-degree assault, and three counts of second-degree assault. He challenges his attempted first-degree murder convictions, asserting the district court erred by admitting "strained-relationship" evidence. Appellant further challenges his sentence, asserting (a) his criminal history score was increased by a burglary conviction and the increased score was improperly used to increase his sentence for one kidnapping count and (b) his aggregate sentence exaggerates his criminality. Appellant raises additional arguments in his pro se supplemental brief. We affirm but modify appellant's sentence, reducing it from 520 months to 480 months.

FACTS

During the early morning hours on October 22, 1997, appellant Richard Joseph King shot out a sliding-glass door and broke into the home where his ex-girlfriend Susan Bard was living with her 10-year-old son, J.B. J.B.'s paternal grandmother, Joyce Erling, and great-grandmother, Dorothy Clapp, were also staying at the home. Bard heard the noise from a second-floor bedroom and went to investigate. King met her and forced her at gunpoint back into the master bedroom where she and J.B. had been sleeping. King then kicked in the door of the bedroom where Erling had been sleeping, hit her in the back of the head with the gun, and took her to the master bedroom. Clapp, who had been sleeping in a bedroom on the first floor, heard the commotion and went upstairs to investigate. King forced her into the master bedroom with the others.

Erling attempted to grab King's gun but was unsuccessful. King asked whether Erling believed the gun was loaded, stepped toward Bard, and shot her in the head. King then tore Bard's nightshirt off, dragged her toward the hallway, and left her lying on the floor. King later moved everyone, including Bard, into the bathroom. King beat holes into the bathroom walls with the butt of the gun, broke a mirror, and continued to threaten everyone. After several hours, Erling agreed to write a note for King, stating that Bard was shot accidentally while Erling and King struggled over the gun. Erling then convinced King to let her take J.B. and Clapp out to a car to warm up. Erling, J.B., and Clapp got into the car, drove away, and contacted the police. After they left, King put Bard into one of the Bard family's cars and began driving toward Wisconsin. Along the way, he stopped and asked a pedestrian for directions to LaCrosse. Noticing that King was wearing a jacket and no shirt and that Bard was naked, the pedestrian called the police. King was eventually stopped and arrested.

King was charged with two counts of attempted first-degree murder, two counts of first-degree burglary, four counts of kidnapping, one count of first-degree assault, and three counts of second-degree assault. A jury found King guilty of all the charges, and he was sentenced to 520 months.

D E C I S I O N

  1. Relationship Evidence

Evidence demonstrating a "'strained relationship' between the accused and the victim is relevant to establishing motive and intent and is therefore admissible." State v. Mills, 562 N.W.2d 276, 285 (Minn. 1997) (citations omitted); see also Minn. R. Evid. 404(b) (permitting admission of prior bad acts to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"). To admit such evidence, the district court must determine whether there is clear and convincing evidence that the defendant committed the acts and whether the evidence's probative value outweighs any potential for prejudice. Mills, 562 N.W.2d at 285.

The district court permitted Bard to testify about a 1991 incident during which King hit, slapped, and kicked her; stretched her mouth; and pulled her hair. The district court also permitted Bard to testify about a 1995 incident in which King tied her up, threatened her with a knife, and nicked her leg as he was cutting her pants off.

King asserts that the probative value of this evidence did not outweigh its potential for unfair prejudice. King points out that under Erling's version of the facts, he walked up to Bard and shot her in the head, while according to King's testimony, Bard was shot as King fought with Erling over the gun and Erling actually pulled the trigger. He insists that under either version, the relationship evidence had little, if any, probative value. Under Erling's version, he asserts, intent was beyond dispute; under his own version, intent was not relevant because he did not fire the gun at all.

In State v. Langley, 354 N.W.2d 389, 391 (Minn. 1984), the defendant argued that his wife died by accidentally electrocuting herself while she was in the bathtub. There, the supreme court noted that relationship evidence is properly admitted, "[e]specially where a defendant has 'suggested that the injury which caused the death had been accidental'" and where it is "admitted to aid the jury 'in reconstructing what caused the victim's injuries.'" Id. at 397 (quoting State v. Broda, 318 N.W.2d 239, 240 (Minn. 1982)).

The district court did not err by admitting relationship evidence in this case. As in Langley, King asserted that he did not intend to harm Bard but that "it was an accident." Evidence of prior assaults on Bard was probative in attempting to establish intent and in rebutting his argument that this was an accident. King was certainly free to cross-examine and/or produce counter-evidence to negate the inference the state was propounding, but it was legitimate for the state to introduce relationship evidence.

II. Sentencing

A. Sentence for Kidnapping J.B.

King asserts that the district court erred as a matter of law when it used one of King's burglary convictions in this case to increase his criminal history points from one to two before sentencing him for kidnapping J.B.

In State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981), the supreme court determined that where convictions are not part of a single behavioral incident, the district court may use the prior convictions to increase the defendant's criminal history score used in sentencing on the later convictions. See State v. Soto, 562 N.W.2d 299, 302 (Minn. 1997) (describing the "Hernandez method" of sentencing). In determining whether multiple offenses constitute a single behavioral incident, the court may consider the time and place of the offenses and "whether the offenses were motivated by a desire to obtain a single criminal objective." Id. at 304 (citations omitted).

The burglary in this case is tied to the kidnapping of J.B. in both time and place. The state asserts that the two crimes were not motivated by the same desire because King broke into the home with the intent to attack Bard and not with the intent to kidnap J.B. Despite the state's assertion, however, both the burglary and the kidnapping of J.B. were motivated by King's desire to confront Bard. Thus, they were both "motivated by a desire to obtain a single criminal objective." Id. at 304.

The presumptive sentence for kidnapping a child under 16 when the defendant has a criminal history score of one is 58 months. Minn. Sent. Guidelines IV, V. King was sentenced to 68 months for kidnapping J.B. Because the burglary and the kidnapping of J.B. were part of the same behavioral incident, we modify King's sentence for kidnapping J.B. to 58 months.

B. Exaggerated Sentence

King next argues that his aggregate 520-month sentence exaggerates the criminality of his conduct. King asserts that the district court abused its discretion by (a) imposing consecutive sentences for the kidnapping of J.B., Erling, and Clapp and (b) departing from the presumptive sentences in sentencing on an attempted murder conviction and the conviction for kidnapping Bard.

1. Consecutive Kidnapping Sentences

When multiple victims are involved, the district court may impose one sentence for each victim "so long as the multiple sentences do not unfairly exaggerate the criminality of the defendant's conduct." State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988) (citation omitted). In Norris, there were six victims, and the Minnesota Supreme Court allowed three consecutive sentences and three concurrent sentences. Id. at 70-71. Such sentences are permissive and do not constitute a departure. Minn. Sent. Guidelines II.F.2.

The district court sentenced King to consecutive sentences of 68 months for kidnapping J.B., 48 months for kidnapping Erling, and 48 months for kidnapping Clapp. The district court supported its decision to order consecutive sentences by stating:

The defendant broke into the house in the early morning hours by shooting out a glass patio door.

He terrorized all four victims for several minutes by threatening to kill each of them before he shot Susan Bard in the head in front of her ten year-old son and his paternal grandmother and 80 year-old paternal great grandmother.

In the process of kidnapping Joyce Erling, he hit her from behind on the head with the pistol.

After shooting Susan Bard, he ripped her night dress off and dragged her into the bathroom where he confined all the victims for several hours while Susan Bard bled from the gunshot wound to the head.

While held captive in the bathroom, the three conscious victims were again threatened with death by the defendant.

In light of the district court's findings supporting the imposition of these sentences, imposing consecutive sentences did not unfairly exaggerate the criminality of King's conduct. The district court did not abuse its discretion in sentencing King to consecutive sentences for his kidnapping convictions.

2. Upward Departures

The district court should impose the presumptive sentence absent circumstances indicating that a departure is warranted. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The district court has discretion to depart only if aggravating or mitigating factors are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). Consecutive sentencing may be combined with durational departures when severe aggravating circumstances exist. Rairdon v. State, 557 N.W.2d 318, 327 (Minn. 1996).

King was sentenced to 240 months for one of his attempted first-degree murder convictions, for which the presumptive sentence is 180 months. He was also given a consecutive sentence of 116 months for kidnapping Bard. The presumptive sentence for the kidnapping conviction is 86 months.

a. Attempted First-Degree Murder - Durational Departure

In sentencing King on one of his attempted first-degree murder convictions, the district court concluded that aggravating factors existed to support a departure.[1] In reference to this sentence, the district court stated:

The victim was treated with particular cruelty because she was shot by you at point-blank range with her ten year-old son, who is known by you, while he was looking on while lying next to the victim in their bedroom.

See Minn. Sent. Guidelines II.D.2.b.(2) (listing particular cruelty to victim as aggravating factor).

The district court's decision to depart is supported by aggravating factors. The district court did not err in departing durationally on King's sentence for attempted first-degree murder.

b. Kidnapping Bard Consecutive Sentence

The district court supported its decision to sentence King consecutively for his conviction for kidnapping Bard, stating:

In an effort to flee the crime scene, the defendant kidnapped Susan Bard in a car at a time when she was particularly vulnerable due to a gunshot wound to the head and loss of blood over several hours.

The defendant showed particular cruelty to Ms. Bard by failing to seek medical attention for her by transporting her in the car naked.

See Minn. Sent. Guidelines II.D.2.b.(1), (2) (listing particular vulnerability of victim and particular cruelty to victim as aggravating factors).

The factors listed by the district court constituted aggravating circumstances. See State v. Frank, 416 N.W.2d 744, 747, 749 (Minn. App. 1987) (upholding more than double-durational departure where district court found severe aggravating circumstances based on defendant's participation in gang rape and defendant driving vehicle for over two hours while victim was sexually assaulted and beaten by accomplices, then left for dead), review denied (Minn. Feb. 8, 1988). Thus, the district court did not abuse its discretion by imposing a consecutive sentence here.

c. Kidnapping Bard Durational Departure

The district court did not make any findings regarding why it decided to depart durationally in sentencing King for kidnapping Bard. The district court initially stated that it was sentencing King to the presumptive sentence of 86 months. The district court changed the sentence in response to the following statement by the prosecutor:

Your honor, if I could bring to the Court's attention to count two is Attempted Murder. I believe the Court imposed 270 months, but that the statutory maximum would be 240 months, and if the Court essentially was trying to reach a 520-month sentence, I would ask the Court to consider a departure on the kidnapping or other counts.

Immediately following the prosecutor's statement, the district court resentenced King on the attempted murder conviction, reducing the sentence from 270 to 240 months, and on the kidnapping of Susan Bard conviction, increasing the sentence from 86 to 116 months.

A departure is not permitted if no supporting reasons for a departure appear on the record. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). No reasons for this departure were cited here. The district court seemingly decided to depart upward as an afterthought because of the overall seriousness of the defendant's actions. On this count, the district court erred in sentencing King to an upward departure of 116 months, and we reduce his sentence for kidnapping Susan Bard to the presumptive 86 months.

III. Pro Se Arguments

A. Kidnapping Sentences

King asserts in his pro se brief that he should not have been sentenced consecutively for his kidnapping convictions as to Clapp, Erling, and Bard. As to Clapp, he asserts that the court erred by not stating a reason for sentencing him consecutively. As to Erling and Bard, King argues that he should not have received a consecutive sentence because the court noted during the sentencing for kidnapping Erling and Bard that King had assaulted them.

As stated above, a decision to sentence King consecutively for his kidnapping convictions relating to Erling and Clapp is permissive because each relates to a different victim. A district court is not required to state reasons for consecutive sentencing when there are different victims. Minn. Sent. Guidelines cmt. II.F.04. Here, as noted previously, the district court did state its reasoning for making the sentences consecutive. The district court's mention, within this reasoning, of King hitting Erling with his gun was not erroneous because the district court was explaining why this sentence did not exaggerate King's criminality. The court's decision to sentence consecutively for the Bard kidnapping was a departure, but the court justified that departure by listing aggravating factors supporting its decision.

B. Expert Witness

King next argues that the district court abused its discretion by refusing to permit his expert witness to testify about the effects of drugs and alcohol. He asserts the expert would have supported his theory that Bard was shot by accident and established his credibility.

Whether to admit expert-witness testimony is generally within a district court's discretion. State v. Griese, 565 N.W.2d 419, 425 (Minn. 1997). Expert testimony of how "intoxication may have impaired a defendant's capacity to form specific intent is inadmissible diminished capacity testimony." Id. (citation omitted).

King asserts that his case is distinguishable from Griese because he is raising a diminished-physical-capacity defense and not a diminished-mental-capacity defense. See State v. Willey, 480 N.W.2d 127, 130 (Minn. App. 1992) (recognizing diminished-physical-capacity defense and concluding district court erred in excluding evidence of defendant's intoxication), review denied (Minn. Mar. 19, 1992).

Despite King's argument, King did not testify that he accidentally hit the trigger because he was physically impaired by his alcohol and drug use. Instead, King testified that the gun went off while he was struggling with Erling and that Erling pulled the trigger. Because King did not attempt to make a diminished-physical-capacity argument to the district court, he is precluded from doing so on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating appellate court will not generally decide issues not raised to district court). Further, under Griese, King could not present expert witness testimony regarding any alleged diminished-mental capacity. Thus, the district court did not abuse its discretion by excluding King's expert's testimony.

C. Ineffective Assistance of Counsel - Procedure

In February 1999, King attempted to dismiss or stay this appeal by filing a pro se motion with this court. His motion was denied because (a) he was (and is) represented by counsel, and this court does not accept pro se motions from parties represented by counsel, and (b) the motion was untimely because the notice of appeal was filed August 19, 1998. In his pro se supplemental brief King continues to assert that this court should send this case back to the district court so that the record can be expanded and King can raise his claims of ineffective assistance of counsel. King requests that this court dismiss or stay this appeal, which would permit him to petition the district court for postconviction relief. This argument is based on his desire to raise ineffective assistance of trial counsel arguments in postconviction proceedings.

After a defendant has a direct appeal, "'all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.'" Townsend v. State, 582 N.W.2d 225, 228 (Minn. 1998) (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). Thus, as King correctly observes, to assert an argument of ineffective assistance of trial counsel, he was required to either address the issue in his direct appeal or dismiss this appeal and petition for postconviction relief.

Where appellant and appellant's counsel disagree on what issues should be raised on appeal, counsel is not required to address issues that counsel believes have no merit. Case v. State, 364 N.W.2d 797, 800 (Minn. 1985). Appellants who are dissatisfied with their attorneys' arguments on their behalf are permitted to raise additional issues in pro se supplemental briefs. Id.

King has addressed the ineffectiveness of his trial counsel in his pro se supplemental brief. Although he asserts that he did not have enough time to address his arguments fully, this court granted him an extension. Further, despite King's assertions that his appellate counsel did not follow his directions to dismiss this appeal because he wished to petition for postconviction relief, King did not avail himself of his opportunity to waive counsel and move to dismiss on his own. There is no merit to King's assertion that this court should now dismiss or stay this appeal.

D. Ineffective Assistance of Counsel - Merits

To establish that counsel was ineffective, warranting a new trial, King

must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

King asserts his trial counsel erred in numerous ways. King fails to support his arguments by explaining how his counsel's behavior constituted a failure to act reasonably. King has not met his burden of demonstrating that his trial counsel's representation did not meet an objective standard of reasonableness. Further, King has not attempted to show how the errors he alleges would have altered his trial's outcome.

E. Assault

King next argues that the district court committed reversible error by concluding that specific intent is not required for first-degree assault and, therefore, excluding a voluntary-intoxication instruction on this issue. He asserts that after finding him guilty of the attempted-murder charge, the jury could not then find him not guilty of first-degree assault.

Voluntary intoxication is a defense only if specific intent is a necessary element of the charged crime. State v. Fortman, 474 N.W.2d 401, 403 (Minn. App. 1991). An assault involving the infliction of an injury is a general-intent crime because the defendant did not need to have an "'abstract intent to do something further,'" but needed to have only "'an intent to do the prohibited physical act of committing a battery.'" Id. at 404 (quoting State v. Lindahl, 309 N.W.2d 763, 767 (Minn. 1981)) "[A]n assault involving bodily harm merely requires proof that the blows were not accidental, but were intentionally inflicted." Id. at 404 (citing Lindahl, 309 N.W.2d at 767).

King's first-degree assault conviction stemmed from his shooting of Bard. Because the jury needed only to decide whether King intended to shoot Bard, this was a general-intent crime. Thus, the district court did not err by refusing to give a voluntary-intoxication instruction on the first-degree assault charge.

Affirmed as modified.

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

[1] The district court stated that it was departing dispositionally, but because the district court departed only on the duration of King's sentence for attempted first-degree musder, it appears the district court misspoke.