This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-932

 

State of Minnesota,
Respondent,

vs.

Keith E. Washington,
Appellant.

 

Filed August 28, 2007

Affirmed in part and reversed in part

Minge, Judge

 

Chisago County District Court

File No. CR-04-137

 

 

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Janet Reiter, Chisago County Attorney, 313 North Main Street, Center City, MN 55012 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Minge, Judge.

 

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges his various convictions and his sentence.  Appellant argues that his conviction of attempted first-degree assault against a peace officer is not supported by sufficient evidence, that the district court unconstitutionally departed from the presumptive sentence and that the district court erred in sentencing appellant without the possibility of supervised release.  Appellant also argues that his convictions of second-degree, third-degree, and fourth-degree assault should be vacated because they are lesser-included offenses of attempted first-degree assault.  Because we conclude that appellant’s conviction of attempted first-degree assault is supported by sufficient evidence and that the district court did not err in sentencing, we affirm that conviction and the sentence.  Because we conclude that second-degree assault is not a lesser-included offense of attempted first-degree assault, we affirm the second-degree assault conviction.  But because third-degree and fourth-degree assault are lesser-included offenses of second-degree assault, we reverse in part and vacate those convictions.

FACTS

 

            On August 1, 2005, appellant Keith Washington assaulted a correctional officer.  At the time, appellant was incarcerated at the Rush City Correctional Facility.  On the day of the assault, the officer was conducting rounds near appellant’s cell.  In preparation for the assault, appellant created a “stinger,” a makeshift device used to heat liquid.  As the officer conducted rounds, appellant used the stinger to heat a cup of liquid inside of his cell.

            When the officer approached the open doorway of appellant’s cell, appellant threw hot liquid in his face, entered the common area, and began to strike him with his fists.   As the officer attempted to flee, appellant chased him and continued to punch him.  Once the officer was able to use his chemical spray, appellant returned to his cell and retrieved a knotted sock that contained 24 AA batteries that were taped together.  Appellant had left the sock in the doorway of his cell.  Appellant walked toward the officer holding the sock, but when he saw several officers approaching him, he dropped the knotted sock and placed his hands on the wall, where he was handcuffed by correctional officers.  The officer never saw the battery-filled, knotted sock.  The entire incident was recorded at multiple angles by correctional-facility security cameras.         Appellant was charged with first-degree assault against a peace officer and second, third, and fourth-degree assault.  Appellant waived his right to a jury trial and his right to have a jury find facts necessary to justify an upward sentencing departure.

            A two-day bench trial was held in October 2005.  At trial, appellant conceded that he was guilty of third-degree and fourth-degree assault.  Following the trial, the district court found appellant guilty of fourth-degree, third-degree, and second-degree assault and of attempted first-degree assault against a peace officer.  The district court found that aggravating factors justified an upward durational departure, sentenced appellant to 96 months without the possibility of supervised release, and entered convictions on all four counts.  This appeal follows.

D E C I S I O N

 

I.

 

            The first issue is whether appellant’s conviction of attempted first-degree assault is supported by sufficient evidence.  When examining a sufficiency-of-the-evidence claim, we apply the same standard of review to bench trials that we apply to jury trials.  State v. Levie, 695 N.W.2d 619, 626 (Minn. App. 2005).  Our 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 permit the district court to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that the district court believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the district court, 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.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). 

            A.  Intent to Assault with Deadly Force

            Appellant argues that there is insufficient evidence to support the district court’s finding that appellant intended to commit first-degree assault.  A person is guilty of attempted first-degree assault if that person, “with intent to commit [first-degree assault], does an act which is a substantial step toward, and more than preparation for, the commission of [first-degree assault] . . . .”  Minn. Stat. § 609.17, subd. 1 (2004).  Minn. Stat. § 609.221 (2004) defines first-degree assault and makes it a crime to “assault[] a peace officer or correctional employee by using or attempting to use deadly force against the officer or employee while the officer or employee is engaged in the performance of a duty . . . .”  Minn. Stat. § 609.221, subd. 2(a) (2004).  A defendant’s intent is “generally proved circumstantially—by drawing inferences from the defendant’s words and actions in light of the totality of the circumstances.”  State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997).          

            Here, the evidence indicates that appellant created a stinger for the purpose of heating water, prepared extremely hot water in preparation for the assault, taped 24 AA batteries together, and placed the block of batteries in a knotted sock.  And before he initiated the assault, appellant left this battery-filled sock in the open doorway of his cell.  After throwing the scalding water and repeatedly punching the correctional officer, appellant retrieved the battery-filled sock and proceeded toward the officer with it in his hand.  Appellant dropped the sock only when numerous correctional officers approached.  These facts are not disputed and are clearly shown in the video recording of the assault.  The facts also permit the inference that when appellant realized that the officer was able to resist his initial assault with the assistance of a chemical spray, appellant intended to use the battery-filled sock to escalate the assault with the use of deadly force.

            Appellant contends that because he never swung the sock at the officer, he did not intend to assault the officer with deadly force.[1]  But the definition of “attempt” does not require such completed overt conduct.  See Minn. Stat. § 609.17, subd. 1.  The statute requires only the intent to commit the crime and a substantial step toward commission of that crime.  Id.  Appellant’s actions satisfy the elements of the crime even though appellant did not swing the sock at the officer.

            Based on this record, we conclude that the district court’s finding that appellant intended to commit first-degree assault is supported by sufficient evidence.   

            B.  Abandonment

            Appellant also argues that there is insufficient evidence to support the district court’s finding that appellant did not abandon his intent to commit the offense in good faith.  Minn. Stat. § 609.17, subd. 3 (2004), provides that:

[i]t is a defense to a charge of attempt that the crime was not committed because the accused desisted voluntarily and in good faith and abandoned the intention to commit the crime.

           

            The video recording shows that despite an opportunity to discontinue the assault, appellant returned to his cell, picked up the battery-filled sock, and walked back toward his victim with the sock in his hand.  He did not drop the sock until he saw or heard several correctional officers entering the area of the facility.  Here, the factual circumstances permit the inference that appellant’s cessation of the assault was the product of the intervening officers, not appellant’s good-faith intention.  Accordingly, we conclude that there is sufficient evidence supporting the district court’s finding that appellant did not abandon his intent to commit the offense in good faith.

II.

            The next issue is whether the district court erred in departing from the presumptive sentence on the basis of its own findings, even though appellant waived his right to a sentencing jury.  The legality of the district court’s departure and appellant’s waiver of his right to a sentencing jury is a legal issue, which we review de novo.  See State v. Chauvin, 723 N.W.2d 20, 23 (Minn. 2006); In re Welfare of J.C.P., 716 N.W.2d 664, 666-67 (Minn. App. 2006), review denied (Minn. Oct. 17, 2006). 

            In Blakely v. Washington, the United States Supreme Court held that criminal defendants have a Sixth Amendment right to a jury determination of facts necessary to support a sentencing departure.  542 U.S. 296, 303-05, 124 S. Ct. 2531, 2537-38 (2004).  Accordingly, after Blakely, Minnesota district courts are without authority to depart from presumptive guideline sentences on the basis of their own findings.  The version of Minn. Stat. § 609.1095, subd. 2, applicable to the district court’s sentencing of appellant provided for an upward durational departure if, at the time of sentencing, appellant had two or more convictions for violent crimes and the district court found that appellant was a “danger to public safety.”[2] 

            Because the then-effective version of Minn. Stat. § 609.1095, subd. 2 only provided for an upward departure on the basis of the district court’s finding, appellant argues that his waiver was invalid because “[n]either the rules, statutes, nor case law . . . provided a procedure allowing a defendant to waive a sentencing jury or to have a court engage in fact-finding to determine an aggravated sentence.” 

            Before the supreme court concluded that district courts possessed inherent authority to impanel sentencing juries in Chauvin, 723 N.W.2d at 27, appellant’s waiver of his “right” to a sentencing jury and the district court’s departure under the dangerous-offender statute were potentially problematic.  But Chauvin settles this issue.  The supreme court’s decision in Chauvin clearly holds that the district court had inherent authority to impanel a sentencing jury in the absence of explicit legislative authorization.  Id.  It necessarily follows that here, had appellant not waived his right to a sentencing jury, the district court could have exercised its authority to impanel a sentencing jury. 

            We conclude that appellant’s waiver was not illusory, that the district court had authority to accept appellant’s waiver and depart from the presumptive sentence, and that the district court’s sentencing departure, based on that waiver, was proper.    

III.

            The third issue is whether the district court erred in imposing a fully executed sentence on appellant without the possibility of supervised release.  The interpretation and application of a sentencing statute is a question of law, which we review de novo.  Miller v. State, 714 N.W.2d 745, 747 (Minn. App. 2006). 

            Minn. Stat. § 244.05, subd. 1b (2004), states that

every inmate sentenced to prison for a felony offense committed on or after August 1, 1993, shall serve a supervised release term upon completion of the inmate’s term of imprisonment . . . .  The amount of time the inmate serves on supervised release shall be equal in length to the amount of time remaining in the inmate’s executed sentence after the inmate has served the term of imprisonment . . . .

 

In contrast to this general rule, the first-degree-assault statute provides:

(b)       A person convicted of assaulting a peace officer or correctional employee . . . shall be committed to the commissioner of corrections for not less than ten years, nor more than 20 years.  A defendant convicted and sentenced as required by this paragraph is not eligible for probation, parole, discharge, work release, or supervised release, until that person has served the full term of imprisonment as provided by law . . . .

 

Minn. Stat. § 609.221, subd. 2(b) (emphasis added).

            Appellant argues that he was sentenced as a career offender pursuant to Minn. Stat. § 609.1095, subd. 2, and that those sentenced to an upward departure under subdivision 2 have a right to supervised release.  Appellant argues that because subdivision 3 of section 609.1095 prohibits supervised release, the legislature’s failure to include the same requirement in subdivision 2 implies that when departing under subdivision 2, a district court must allow supervised release.  But we note that subdivision 2 is silent about supervised release.  It simply provides that a district court may depart from the presumptive sentence up to the statutory maximum upon making several requisite findings.  We decline to base such a conclusive inference regarding supervised release on the legislature’s silence. 

            Because Minn. Stat. § 609.221, subd. 2(b), unambiguously requires denial of a supervised-release term and because Minn. Stat. § 609.1095, subd. 2, does not conflict with this mandate, we conclude that the district court did not err in sentencing appellant without the possibility of supervised release.

 IV.

            The final issue is whether the district court erred in adjudicating appellant guilty of second-degree, third-degree, and fourth-degree assault.  The statute that governs this matter provides:

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.  An included offense may be any of the following:

            (1) A lesser degree of the same crime; or

            (2) An attempt to commit the crime charged; or

            (3) An attempt to commit a lesser degree of the same crime; or

            (4) A crime necessarily proved if the crime charged were proved . . . [.]

           

Minn. Stat. § 609.04, subd. 1 (2004).

            The state concedes that the district court erred by convicting appellant of third- and fourth-degree assault in addition to second-degree assault.  We agree.  Because third- and fourth-degree assault are lesser degrees of second-degree assault and because Minn. Stat. § 609.04, subd. 1, clearly prohibits convicting appellant of lesser degrees of second-degree assault, we vacate appellant’s convictions for third- and fourth-degree assault.

            Whether appellant’s conviction of second-degree assault should also be vacated requires additional consideration.  Here, only the last clause of the lesser-included-offense statute is potentially applicable.  See Minn. Stat. § 609.04, subd. 1(4).  The other clauses are not relevant.  The supreme court has explained clause (4) as follows: “[i]n determining whether a lesser offense is a necessarily included offense, we look at the statutory definitions rather than the facts in a particular case to determine if a lesser offense is necessarily included.”  State v. Matilla, 339 N.W.2d 54, 55 (Minn. 1983).    

            Here, appellant was convicted of attempted first-degree assault of a correctional officer and second-degree assault with a dangerous weapon.  To be guilty of attempted first-degree assault, the actor must intend and take a substantial step toward, but not necessarily complete, the “assault[] [of] a peace officer or correctional employee by using or attempting to use deadly force against the officer or employee while the officer or employee is engaged in the performance of a duty.”  Minn. Stat. §§ 609.17, subd. 1, 609.221, subd. 2.  A person is guilty of second-degree assault if that person actually “assaults another with a dangerous weapon.”  Minn. Stat. § 609.222, subd. 1 (2004).   

            A comparison of the statutory definitions indicates that second-degree assault is not necessarily proved upon proving the elements of attempted first-degree assault.  An individual may intend to assault a corrections officer with deadly force and take a substantial step toward completion of that assault and yet never complete the assault.  This would support a conviction for attempted first-degree assault under Minn. Stat.
§ 609.221, subd. 1.  But because the crime is only an attempt, it does not include the completed act needed to convict for second-degree assault.  See Minn. Stat. § 609.222, subd. 1.  Likewise, an individual may assault another with a dangerous weapon under the second-degree-assault statute and not intend to assault the individual with the deadly force required to prove a conviction of attempted first-degree assault.  Accordingly, the proving of either offense does not necessarily satisfy the elements of the other offense.

            Here, appellant was convicted of completed second-degree assault for his initial attack with the scalding water and his use of his fists.  Appellant’s conviction of attempted first-degree assault was for appellant’s plan to use the battery-filled sock in a renewed attack.  The videotapes of the incident and the officer’s testimony provided a sufficient basis for finding that the attempt with the sock was the beginning of a second incident.  Based on its determination of a second incident and the different elements of the two criminal offenses, we conclude that the district court did not err by
convicting appellant both of attempted first-degree assault and assault in the second degree.

            Affirmed in part and reversed in part.