This opinion will be unpublished and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 Fredrick Wagner,

Filed August 3, 1999
Halbrooks, Judge

Hennepin County District Court
File No. 98019387

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

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

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

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

U N P U B L I S H E D   O P I N I O N


Appellant David Wagner appeals from his conviction for assault in the third degree in violation of Minn. Stat. § 609.223, subd. 1 (1996). He alleges there was insufficient evidence to find he intended to commit an assault, and the trial court, in essence, negated the jury's verdict and abused its discretion in sentencing him to 48 months' imprisonment, a double durational departure from the presumptive guidelines sentence. Because we find the evidence was sufficient to prove Wagner intended to assault Bounthavy St. Martin and substantial and compelling circumstances supported the trial court's upward departure, we affirm.


In February 1998, Wagner and St. Martin had been involved in a relationship for approximately one year, and lived together in St. Martin's apartment. During the course of their relationship, Wagner was arrested for assaulting St. Martin. St. Martin, nevertheless, continued her relationship with Wagner.

On Saturday, February 21, 1998, a police officer came to St. Martin's apartment in response to a report of arguing in the apartment. St. Martin told the officer that the argument had been with Wagner and she had asked him to move out of her apartment.

On the following Tuesday, Wagner came to St. Martin's apartment to pick up his belongings. While Wagner was moving out, Officer Petricka called the apartment to follow up on the February 21 incident. Wagner answered the phone and Officer Petricka asked to speak to St. Martin. Officer Petricka then asked St. Martin questions to find out if she was all right. Because St. Martin was nervous and hesitant in responding to the questions, Petricka sent an officer to check on her.

Wagner left when the police arrived. The officers went to St. Martin's apartment to see if she was all right. She informed them she was okay and they left the building. Wagner then returned to the apartment and asked St. Martin if she had made a report to the police. St. Martin denied making a report.

What happened next is in dispute. Wagner testified that when he decided to leave, St. Martin tried to stop him. He pushed her out of the way and she struck either the closet door, the wall, or a chair.

The testimony of Colleen Sakima, St. Martin's neighbor, contradicted Wagner's testimony. She testified she was returning to her apartment and heard Wagner asking St. Martin about the police. She stated Wagner's voice was tense. The door to St. Martin's apartment was open, and Sakima looked into the apartment. Sakima saw St. Martin sitting in the living room with Wagner standing over her. Sakima testified she saw Wagner motion downward several times, as if he were punching St. Martin. Sakima shouted, "Hey," and Wagner ran from the apartment. After Wagner left the apartment, Sakima entered the apartment and saw St. Martin's face was covered in blood. Sakima called 911.

When the police and paramedics arrived, St. Martin was very disoriented and unable to give her name and relate what had happened to her. But she told a police officer that her husband had hit her. St. Martin was taken to the hospital. When questioned there, she was unable to remember anything that occurred after Wagner began questioning her about her contacts with the police.

Charles Nicholson, M.D., examined St. Martin on February 25. He testified she had severe swelling and bruising on her face and on both sides of her head. Her eyes were swollen shut, her lips and tongue were so swollen she had difficulty closing her mouth, and there was a laceration on the right side of her nose between and below her eyes. X-rays showed a fracture of the nasal bone near the laceration on her nose. A CT scan showed she had post-concussive syndrome.

As a result of her injuries, St. Martin had blurred vision, headaches, and dizziness. She missed four weeks of work and has a scar on her nose. Dr. Nicholson testified St. Martin sustained a closed head injury. Dr. Nicholson concluded, based on St. Martin's injuries, she was struck or slammed at least three times -- once mid-face, and at least once on each side of the head.

Wagner was arrested and voluntarily made a statement to Officer Petricka. He admitted he was angry and pushed St. Martin's face into a door as he left the apartment. Wagner was charged with assault in the first degree.

Following a jury trial, Wagner was convicted of assault in the third degree and acquitted of assault in the first degree. The court sentenced Wagner to a prison term of 48 months, a double durational departure from the guidelines' presumptive sentence. In support of the sentencing departure, the court cited the particular cruelty of Wagner's conduct, including the nature and extent of the injuries suffered by St. Martin, and St. Martin's particular vulnerability. Wagner brought the instant appeal.


1. Sufficiency of the evidence

On appeal, Wagner argues the state failed to establish that he intended to assault St. Martin. In reviewing sufficiency of the evidence claims, we are limited to ascertaining "whether the evidence, viewed in the 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) (citation omitted). When a conviction is based on circumstantial evidence, as it was in this case, this court will uphold the verdict if "the 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) (citation omitted). In making its determinations, the reviewing court must recognize that "[a] jury normally is in the best position to evaluate circumstantial evidence, and * * * their verdict is entitled to due deference." Webb, 440 N.W.2d at 430 (citation omitted).

A review of the evidence in this case indicates it was sufficient to permit the jurors to determine Wagner had the requisite intent to assault St. Martin. Wagner's anger combined with the testimony of Sakima and Dr. Nicholson do not support Wagner's theory that he pushed St. Martin into the door without intending to hurt her. His story does not account for St. Martin's multiple injuries and is in conflict with Sakima's testimony. Moreover, the jury was "in the best position" to determine the credibility of the witnesses and was free to disregard Wagner's testimony on how St. Martin's injuries occurred and to accept the testimony of Sakima and Dr. Nicholson. See State v. Witucki, 420 N.W.2d 217, 221 (Minn. App. 1988) (stating the jury is in the best position to determine whether the defendant intended to commit an assault and was free to disregard the defendant's testimony that he acted in self-defense), review denied (Minn. Apr. 15, 1988).

Accordingly, the jury could have reasonably inferred from the testimony regarding Wagner's anger, his actions, and St. Martin's injuries that Wagner intended to assault St. Martin and the assault resulted in substantial bodily harm. Id. (holding intent is a "subjective state of mind and is usually established by reasonable inferences drawn from surrounding circumstances") (citation omitted).

2. Sentencing

Wagner contends the trial court abused its discretion in sentencing him to 48 months, a double durational departure from the guidelines' sentence. The standard for reviewing sentencing departures is whether the trial court committed an abuse of discretion. State v. Schantzen, 308 N.W.2d 484, 487 (Minn. 1981). In order to depart upward, the trial court must decide whether a "defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Anderson, 463 N.W.2d 551, 553 (Minn. App. 1990) (quoting State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984)), review denied (Minn. Jan. 14, 1991). If a defendant's conduct is more serious, a court may depart from the presumptive sentence "only when substantial and compelling circumstances exist." Minn. Sent. Guidelines I.4.

In the instant case, the trial court's bases for an upward departure were the permanence of the victim's injuries, the violence of the attack, and the vulnerability of the victim. Wagner argues that the trial court's reliance on the permanence of St. Martin's injuries demonstrates it was sentencing Wagner for first-degree assault rather than third-degree assault, and the severity of the injuries is already factored into the presumptive sentence. He also contends the attack was not particularly cruel and St. Martin does not meet the sentencing guidelines' requirements for vulnerability.

Wagner correctly argues the permanence and severity of the victim's injuries are elements of assault and may not be used as aggravating factors. See State v. Herrmann, 479 N.W.2d 724, 730 (Minn. App. 1992) (stating "when causing serious, permanent bodily harm is an element of the crime itself, such injury cannot be used as a reason for an upward durational departure from the presumptive sentence for that crime"), review denied (Minn. Mar. 19, 1992).

Despite the trial court's expressed reliance on the permanence of St. Martin's injuries, we conclude it was not attempting to negate the jury's verdict and sentence Wagner for first-degree assault. It appears the court's remarks regarding the permanency of St. Martin's injuries were meant to indicate St. Martin's injuries were more severe than those of a typical third-degree assault victim. The trial court specifically recognized he was sentencing Wagner for assault in the third degree and imposed a sentence of 48 months. This is a significantly shorter sentence than the presumptive sentence of 134 months for first-degree assault with a severity offense level of VIII and a criminal history score of 4.

We also find the other aggravating factors relied upon by the court, particular cruelty to the victim and vulnerability of the victim, were sufficient to support its upward departure. See, generally, State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (double durational departure justified because of vicious nature of assault and vulnerability of victim), review denied (Minn. Sept. 29, 1987).

With regard to particular cruelty, the record reflects St. Martin's injuries were the result of multiple blows. The blows were directed at St. Martin's face and head and were delivered by her boyfriend, an individual with whom she had a relationship of trust. See State v. Anderson, 370 N.W.2d 703, 706-07 (Minn. App. 1985) (holding prolonged beating and degrading treatment were particularly cruel and justified double durational departure from guidelines' sentence for first-degree assault), review denied (Minn. Sept. 19, 1985).

Moreover, we have previously recognized the particular vulnerability of domestic abuse victims who repeatedly return to the offenders following incidents of abuse. State v. Elvin, 481 N.W.2d 571, 576 (Minn. App. 1992) (affirming an upward departure on that basis), review denied (Minn. Apr. 29, 1992); see also State v. Schroeder, 401 N.W.2d 671, 675 (Minn. App. 1987), review denied (Minn. April 23, 1987) (particular vulnerability found when victim knew and trusted assailant for a long time). In the present case, St. Martin was a victim of repeated domestic abuse and as such was particularly vulnerable to Wagner. The trial court did not abuse its discretion in doubling the presumptive sentence.