This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1420

A05-1431

 

State of Minnesota,

Appellant (A05-1420),

Respondent (A05-1431),

 

vs.

 

Eileen Carol Klinghagen,

Respondent (A05-1420),

Appellant (A05-1431).

 

Filed ­­­September 12, 2006

Affirmed in part, reversed in part, and remanded

Dietzen, Judge

 

Kandiyohi County District Court

File No. K4-03-1202

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Boyd Beccue, Kandiyohi County Attorney, Dain L. Olson, Assistant County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for appellant (A05-1420); for respondent (A05-1431))

 

Ramona C. Lackore, 432 Southwest Litchfield Avenue, P.O. Box 1529, Willmar, MN 56201 (for respondent (A05-1420))

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant (A05-1431))

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges her conviction of second-degree assault with a dangerous weapon, arguing insufficiency of the evidence; and the state challenges the downward dispositional departure in her sentence, arguing that substantial and compelling circumstances for the departure do not exist in the record.  We affirm the conviction, but reverse and remand for resentencing.

FACTS

 

            In August 2003, Sergeant Steve Marquardt of the Kandiyohi County Sheriff’s Department and Assistant Communications Director Jody Norstegaard were dispatched to serve an eviction summons and complaint on appellant Eileen Klinghagen, related to the taking by eminent domain of the residence that she was renting.  When they approached the residence in a fully marked squad car, they were passed by a grey Ford Taurus that Norstegaard stated was driven by appellant.  After determining that no one was present at the residence, Marquardt decided to try to locate the grey Ford Taurus. 

            Marquardt located the vehicle stopped on a dead-end road and identified the driver as appellant.  Marquardt then exited the squad car, raised the civil process papers, and motioned for appellant to stop as she began to drive toward him.  But appellant remained in her vehicle and drove toward Marquardt, who stated that he was forced to quicken his pace to get out of the way and step into the ditch at the side of the road to avoid being struck by appellant.

            After seeing appellant drive through a stop sign and fail to use a turn signal, Marquardt got into his squad car, activated his red lights and siren, and pursued her.  Marquardt testified he was traveling approximately 80 miles an hour while in pursuant of appellant.  At appellant’s residence, Marquardt exited his squad car to arrest appellant, but appellant refused to comply and so he grabbed her arm and elbow to restrain her.  According to Marquardt, appellant attempted to bite Norstegaard and him as she was being handcuffed and placed in the squad car.

            Appellant was charged with second-degree assault with a dangerous weapon; fourth-degree assault; fleeing a police officer; fifth-degree assault; obstructing legal process; failing to stop at a stop sign; two counts of failure to signal; and speeding.  At trial, Marquardt and Norstegaard testified in support of the charges against appellant.  Also, Steven Wright, an employee of the City of Willmar, testified regarding appellant’s ongoing dispute with the city, her threat to shoot any law enforcement officer who came to her property, and her dogs, alleged specially trained to attack law enforcement officers.

            Appellant’s version of the events is considerably different.  According to her, she was driving to a farm to talk to its owners about the city’s plans to build an airport when she saw and followed a red-tailed hawk.  When she was approached by Marquardt, she became terrified because of her fear of police officers and proceeded to drive past him and drive home to a safe place.  She testified that she was not trying to be uncooperative when Marquardt tried to arrest her.  Instead she was trying to avoid being injured by him.  She testified that she is not a violent person and denied attempting to bite either of the officers.

            Following trial, appellant was found guilty of all charges except for one count of failing to signal and speeding.  A pre-sentence investigation report recommended that appellant be given the presumptive sentence.  The report concluded that appellant “took no responsibility for her actions against Sergeant Marquardt and Jody Norstegaard” and “blames [Marquardt] for provoking the incident”; and that appellant “appears to have mental health issues that affect her thinking and reasoning[,]” but that “she also seems to know the difference between right and wrong and how to use her disabilities to her advantage and also as an excuse for her behaviors.”

            At the sentencing hearing, appellant moved for a downward dispositional departure based on her mental health condition.  The district court stayed the proceedings and ordered appellant to submit to a psychological evaluation.  Dr. James observed that appellant suffered from certain mental disorders and recommended alternative sentencing for appellant that would include community service and outpatient psychological treatments.

            In April 2005, the district court sentenced appellant to 21-months for the second-degree assault conviction to run concurrently with the sentences for her other convictions and granted a downward dispositional departure by staying execution of the sentence and placing her on probation for five years with several conditions.  In this consolidated appeal, appellant challenges her conviction of second-degree assault, and the state challenges the downward dispositional departure.

D E C I S I O N

I.

 

Appellant contends that the evidence was insufficient to support her conviction of second-degree assault.  Appellant does not challenge her other convictions.  On a claim of insufficiency of the evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  On appeal, we must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The jury determines the credibility of witnesses and weight of their testimony.  State v. Travica, 398 N.W.2d 666, 670 (Minn. App. 1987).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            Second-degree assault is defined as assault with a dangerous weapon. Minn. Stat. § 609.222, subd. 1 (2002).  Assault is defined as “(1) [a]n act done with intent to cause fear in another of immediate bodily harm or death; or (2) [t]he intentional infliction of or attempt to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10 (2002).  “With intent to” and “intentionally” mean that the actor has a purpose to do the thing or cause the result specified, or believes that the act will cause the result if successful.  Id., subd. 9(3), (4).  Intent can be logically inferred from circumstantial evidence, including the offender’s conduct, the character of the assault, and events occurring before and after the crime.  Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999).  “Generally, a person’s intent must be determined from his words (if any) and actions in the light of all the surrounding circumstances.”  State v. Hardimon, 310 N.W.2d 564, 566 (Minn. 1981) (quotation omitted).

Appellant argues that her testimony is the only direct evidence of her intent and that the state’s circumstantial evidence of assaultive intent was not sufficient to contradict her testimony.  But weighing the evidence is the exclusive prerogative of the jury.  Travica, 398 N.W.2d at 670.  Marquardt testified that appellant drove her vehicle toward him, forcing him to move into the roadside ditch to avoid being struck.  The jury could reasonably conclude from the evidence that appellant drove her vehicle toward Marquardt with the intent to cause fear of immediate bodily harm or death. 

Appellant argues that because she was prone to panic attacks and feared police officers, she lacked the requisite intent to harm Marquardt.  But the jury chose to believe that the testimony of Marquardt and others demonstrated that appellant intended to harm Marquardt.  See Travica, 398 N.W.2d at 670 (stating that it is the exclusive prerogative of the jury to weigh witness credibility).  And appellant at trial introduced no evidence of medical records showing panic attacks or records of past incidents with the police.  Therefore, viewing the evidence in the light most favorable to the jury verdict, the conviction of second-degree assault has adequate support in the record.

II.

 

            The state contends that the district court abused its discretion in granting a downward dispositional departure from the presumptive sentence of a 21-month executed sentence.  We review the district court’s decision to depart from the presumptive sentence for an abuse of discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  “The district court has broad discretion to depart if substantial and compelling circumstances exist, and this court generally will not interfere with the exercise of that discretion.”  State v. Martinson, 671 N.W.2d 887, 891 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004).

The Minnesota Sentencing Guidelines provide a list of non-exclusive factors that a district court may use as reasons for granting a downward departure, which include:

(1) The victim was an aggressor in the incident.

 

(2) The offender played a minor or passive role in the crime or participated under circumstances of coercion or duress.

 

(3) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed.  The voluntary use of intoxicants (drugs or alcohol) does not fall within the purview of this factor.

 

. . . .

 

(5) Other substantial grounds exist which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense.

 

Minn. Sent. Guidelines II.D.2.a.  In determining the appropriateness of the sentence, this court reviews whether the reasons given by the court justify the departure, and, if not, whether an examination of the record reveals sufficient evidence to support the departure nevertheless.  State v. Carter, 424 N.W.2d 821, 823 (Minn. App. 1988).

            Here, the district court based its downward dispositional departure on two findings: (1) “the diminished emotional capabilities of [appellant]”; and (2) “the hope that [appellant] is amenable to the less restrictive probationary conditions.”  The state argues that the district court’s finding that appellant has “diminished emotional capabilities” does not justify the downward departure in appellant’s sentence.   We agree.          

            Although the district court found that appellant had “diminished emotional capabilities,” it did not find that appellant “lacked substantial capacity for judgment.”  Minn. Sent. Guidelines II.D.2.a.(3).  Specifically, the district court concluded that appellant’s medical impairment was not so severe that she “lacked substantial capacity for judgment when the offense was committed[.]”  Thus, the court’s finding of “diminished emotional capabilities” did not constitute a substantial and compelling ground for departure.

Appellant relies heavily on the court-ordered psychological evaluation to support the argument that she is mentally ill.  Extreme mental impairment has been held to be a mitigating factor in sentencing.  State v. Wall, 343 N.W.2d 22 (Minn. 1984); see also State v. Gilbert, 448 N.W.2d 875 (Minn. 1989) (depraved mind assault).  “The emphasis should be on ‘extreme.’”  State v. Lee, 491 N.W.2d 895, 902 (Minn. 1992).    

But the district court concluded that appellant was not so mentally ill as to lack responsibility for her actions.  The record supports the district court’s determination. Dr. James testified that appellant was culpable for her actions, i.e., that her mental condition did not deprive her of control over her behavior.  And appellant does not demonstrate that any of her disorders affected her control over her actions.  See, e.g., Lee, 491 N.W.2d 895 (finding no “extreme impairment” even though the defendant was depressed, angry, and impulsive). 

            Next, the district court expressed “the hope that [appellant] is amenable to the less restrictive probationary conditions.”  The district court may impose probation “in lieu of an executed sentence when the defendant is particularly amenable to probation.”  State v. Gebeck, 635 N.W.2d 385, 389 (Minn. App. 2001).  In determining a defendant’s amenability to probation, the district court may consider the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends or family.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).

The state concedes that the district court essentially found that appellant was amenable to probation, but argues that its determination is not supported by the record.  The state relies on the pre-sentencing report, which states that appellant denied wrongdoing and blamed the city for her actions; and appellant’s testimony at the sentencing hearing that “[her] whole problem through this whole thing has been in a battle with the City of Willmar.”  Thus, the state contends that appellant lacks remorse and continues to blame the government for her actions; hence, she is not amenable to probation. 

Appellant argues that because of her mental illness, she “is particularly unamenable to incarceration.”  Unamenability to incarceration due to a serious and persistent mental illness is a factor that may be considered in determining whether a dispositional departure is appropriate.  Minn. Sentencing Guidelines II.D.2.a.(6).  Here, the psychologist who evaluated appellant reported that appellant’s personality tests suggest the likelihood of a severe mental disorder.[1]  In the psychologist’s opinion, appellant’s ability to be incarcerated is questionable.  We conclude that it is appropriate for the district court to consider this testimony in determining appellant’s amenability to probation.

Based on our review of the record, we are unable to determine the basis of the district court’s conclusion that appellant is amenable to probation and what factors the district court considered in reaching its decision.  Without any findings to explain or justify its conclusion that appellant is amenable to probation, we are unable to conduct appellate review or “examin[e] the record to determine whether there is evidence to support the departure[.]”  See Carter, 424 N.W.2d at 823. 

Accordingly, we remand the case to the district court to resentence appellant.  Although there may be substantial and compelling reasons to justify a downward dispositional departure, we are unable to conduct appellate review on this record. 

Affirmed in part, reversed in part, and remanded.