State v. Edwards

nonspecific, foundation admission of fleeting, minimally preju- admissible as and Thus, guilt). defendant’s statement of we dicial viewed individually, when and be- to Atkin- that because the references hold prior cause the reference to Atkinson’s necessary son’s incarceration were as foun- rights, arrests did not affect his substantial lyrics, dation for the admission of the we conclude even when viewed collec- were references admissible and denial tively, unfairly references these did not request for a instruction of the curative Thus, prejudice Atkinson. we hold that not error. was admitting trial did not err in or in failing these references to issue a reference, public As for the defender instruction with respect curative investiga- witness’s offhand remark that gathering references. tor evidence related to the case worked for the “Public Defender’s Office” Affirmed. any indirect fleeting, preju- dice attributable to the was in- comment

significant. We conclude that the trial

court did not abuse its when it discretion

declined to declare a mistrial.

Finally, coun because defense object

sel did not to the indirect reference arrests, previous to Atkinson’s the court’s Minnesota, Respondent, STATE limiting failure issue a in curative or plain struction reviewed under the error 31.02;

rule. See Minn. R.Crim. P. State v. Christopher EDWARDS, Appellant. Griller, 583 N.W.2d No. A07-1012. plain rule, Under error defendant (1) (2) error; show must there is that is Supreme Court of Minnesota. (3) plain; and the error affected substan Nov. Strommen, rights. tial State v. “If those met, prongs

three are may we correct the only if it ‘seriously

error the fair affect[s]

ness, integrity, public judi reputation proceedings.’”

cial (quoting Id. State v.

Crowsbreast, (Minn.

2001)). with the

As references to Atkinson’s use defender, public

of a the references to previous

Atkinson’s fleeting, arrests were

nonspecific, minimally if prejudicial, Consequently,

all. the admission of this

testimony did not affect Atkinson’s sub- rights,

stantial and he is entitled to not

any relief on this claim.

Because the references to Atkinson’s use defender, public

of a his incarceration at trial, time of prior and his arrests were early morning January

In the hours of 28, 2006, County deputies Olmsted re- sponded multiple gunshots Shop- at the Rochester, parking ko lot Minnesota. arrival, Upon deputies stopped three leaving parking vehicles that were lot. Din, passenger Makara in one of the vehicles, had been shot in the chest and transported hospital severe respiratory distress. A car driven appellant passen- James Mason with as a ger, containing and a vehicle Phalla friends, Krouch one of his and were the by stopped other two vehicles law enforce- ment. Edwards was transferred to the Swanson, General, Kelly Attorney Lori During law enforcement center. Moller, Attorney Assistant Gener- O’Neill time, swabs taken of were Edwards’ Paul, MN; Ostrem, al, A. and Mark St. hands, gunshot and residue was found on Rochester, MN, County Attorney, Olmsted his left hand and both cuffs of his coat. respondent. Din, gunshot who suffered wounds to Winn, R. Public Rochelle Assistant State upper part of his sternum and his back MN, Defender, Paul, appellant. St. blade, right near the shoulder was treated emergency

at the room. Khaosan Ruos OPINION gunshot and his brother also suffered wounds, and Khaosan Ruos was treated at DIETZEN, Justice. emergency room. (Ed- Appellant Christopher Edwards charged The State Edwards with first- wards) of one count of first- was convicted assault, in degree violation Minn.Stat. three counts of drive- degree assault and 609.221, (2008), §§ subd. and 609.05 and shooting of a inci- by-shooting arising out drive-by shooting, in with three counts of dent in which three individuals sustained 609.66, §§ violation of Minn.Stat. subd. im- gunshot injuries. The district court le(b) (2008), shooting and 609.05 for the concurrent sentences for the drive- posed injuries sustained Makara resulting and by shooting involving convictions two of Din, Ruos, and Khaosorn Ruos.1 Khaosan imposed a 190-month sen- the victims and trial, right jury his to a involving conviction Edwards waived tence for the assault victim, proceeded as a court trial. up- which a 30-month and case the other trial, testimony presented At the State departure. appealed Edwards ward Trip at a so stopped that Krouch had Kwik appeals arguing that the district that his friends could use restroom imposing its discretion court abused got argu- into an buy cigarettes. Krouch durational for the first- upward and others in Wat- of ment with Matt Watson degree assault conviction. The court saying affirmed, car. called Edwards granted review. son’s Watson appeals and we with some Asian having he was trouble affirm. requisite attempted guilty he lacked the charged with him not because 1. Edwards was also murder; intent. first-degree the district court found arranged nearby to meet at a criminal-history men and calculated Edwards’ score presump- Krouch followed as four and determined that the McDonald’s. Watson’s tive sentence for car but left when he saw assault was to McDonald’s 114-160 months. Based on criminal- had another car with him. At Watson six, history score of friends, presumptive Edwards’ point, one of Krouch’s Sokha drive-by sentence for shooting of Din Vong, called Makara for assistance months;2 Khaosan Ruos was 92-129 nearby Din to meet them at a and asked seven, history based on a criminal score of Shopko parking they lot because were be- presumptive Edwards’ sentence for the by two or three followed cars. drive-by shooting of Khaosorn Ruos was Krouch, Vong, Cars driven and Din 92-129 argued months. The State converged parking at the lot. Mason stated assault of Makara Din was significantly lot, that when he drove into the some of more than typical first-degree serious them, yelling the individuals confronted assault and an upward departure. merited swearing. opened pas- Edwards granted The court the State’s motion for window, out, senger-side leaned and fired months, departure of 30 result- Din, several shots. Makara Khaosan ing in an executed sentence of 190 months Ruos, and Khaosorn Ruos gun- suffered for first-degree the assault. It found that: shot wounds. assaulting Defendant’s conduct in Ma- Several witnesses described that the kara Din was significantly more serious parking lot by Shopko, was shared the than typically involved in the com- Theater, Chateau and several other stores mission of the crime of degree first as- strip mall. the Mason testified that sault, in that Defendant fired seven Edwards shooting towards the Cha- times at or a group peo- toward of nine teau Theater. Law enforcement discover- area, ple the immediate exposing all ed that the wall of the Chateau Theater death, and, injury of them to in addi- bullets, recently had been damaged and Din, tion to Makara seriously injuring fragments two bullet were found near that Khaosan Ruos. Defendant’s conduct was security wall. The head of Shopko particularly represented serious and testified the store was closed between greater than danger normal to the safe- p.m. Friday night on a.m. ty of other people. Saturday morning, but that the store has imposed The court then an 88-month sen- employees that work overnight. drive-by tence for the shooting of Khaosan trial, Following bench the district Ruos, which was a four-month downward court found guilty first-degree Edwards departure, and a 98-month sentence for involving assault Makara drive-by Din and drive-by shooting of Khaosorn Ruos. Din, Ruos, shooting of Khaosan and Khao- The court ordered that the sentences be At sentencing, sorn Ruos. the district concurrently.3 served criminal-histoiy 2. Edwards received two criminal-history point drive-by for the shoot- points involving for the conviction Khaosan. See Minn. assault conviction point Sent. Guidelines That II.B.l.a. was add- because it was a level IX offense. See Minn. criminal-history prior ed to his to his score points Sent. Guidelines II.B.l.a. Those were sentencing drive-by shooting on the offense criminal-histoiy prior added to his score involving Khaosorn. drive-by shooting his on the of- involving using fenses Khaosan the Hernandez 3. The district court could have chosen to im- Hernandez, method. v. See State 311 N.W.2d pose consecutive sentences for the assault and 478, (1981). Edwards then received one drive-by shooting depart- convictions without appealed upward depar Edwards history.” offender’s criminal Minn. ture for the assault conviction. The court I; Jackson, Sent. Guidelines 749 N.W.2d affirmed, appeals concluding at 357. district court did not abuse its discretion in The sentencing guidelines permit granting upward departure based on departures presumptive sentence, from the firing Edwards’ indiscriminate into the but court departing guidelines from the Edwards, A07-1012, crowd. No. must articulate “substantial compel July 2008 WL at *3-4 (Minn.App. ling” circumstances justifying depar 2008). II.D; ture. Minn. Sent. Guidelines Jack son, 749 N.W.2d at 360. “Substantial and I. compelling” circumstances are those show The issue before us is whether ing that the sig defendant’s conduct was trial in imposing court erred a 190- nificantly more or less serious than that sentence, month up executed which is an typically involved in the commission of the months, ward of 30 for Ed Jones, offense in question. State v. wards’ assault conviction. This court re views a district depart court’s decision to presumptive guidelines from the sentence Under our sentencing jurispru Taylor abuse of discretion. v. dence, permissible it is for the district State, If court to impose sentencing de given the reasons upward departure for an if parture the evidence shows that legally permissible are factually sup defendant committed the offense in ques record, ported in the departure the will be tion in a particularly way.4 serious Ture v. affirmed. But if the district court’s rea State, (Minn.1984) 518, 353 525 N.W.2d departure for “improper sons are or inade (concluding that whether an upward de quate,” departure the will be reversed. parture justified is “depends on whether Jackson, 353, State v. 749 N.W.2d 357 defendant question committed the crime in (Minn.2008) (quoting Taylor, 670 N.W.2d ... in a particularly way”). serious But 588). at permitted the district court is not to im Sentencing pose upward The Minnesota an if departure Guidelines the sentence promote uniformity, were created to pro- unfairly exaggerate will the criminality of portionality, rationality, conduct, and predictability the punish defendant’s a defen sentencing. in Misquadace, State v. 644 dant twice for the same conduct. See 65, (Minn.2002). Osborne, N.W.2d Through v. State 715 N.W.2d guidelines, the legislature seeks to ensure In considering whether the following “sanctions conviction of a given by facts the district court to impose felony proportional are to the severity upward departure of legally permissi are ble, the offense of conviction and the extent of we consider whether those facts are II.F.l, ing upward, sentencing jurisprudence see Minn. Sent. Guidelines 4. Our "signif- treats icantly imposed "particularly more serious” and but instead it concurrent seri- sentences. equivalent ous” as standards. See State v. imposed Had the district court consecutive Back, (Minn.1983) 341 N.W.2d sentences, presumptive the maximum sen- (equating a determination that defendant's tence would have been 274 months without "significantly conduct was more serious” upward departure assault convic- than usual with the conclusion that defendant tion, upward depar- or 304 months with the "par- committed the offense of conviction in a ture. ticularly way”). serious Jones, guilty to two counts of bur- pleaded Ott See departure. “available” of theft from and two counts glary of (listing categories at 849 N.W.2d incidents, in occurring one separate two looking courts to district facts available September other in July 1982 and the have articulated sev- depart upward). The district court 1982. Id. 883-84. in district court to assist the principles eral of an executed sentence imposed “available” for facts are determining what September months for the offenses departure. July in connection with the of- probation may not First, district court Id. at 884. The district court fenses. on facts neces base departure by citing Ott’s explained the being of the offense sary to elements prove the fact that prior probation, failure on Blanche, v. N.W.2d sentenced. State prison Ott’s extended confinement (“The (Minn.2005) reasons 378-79 community, protect would better must not themselves be departing used for separate were other the fact there crime.”); elements of the nature for which the incidents of same (Minn. Peterson, 58, 60 agreed prosecute not to Ott. Id. state 1983). implicated not principle This is that none of the factors cited We held this case. justified departure. the district court Id. respect with to the district Specifically, Second, may not the district court uncharged underly- conduct court’s use of that, on facts upward departure base an incident, ing separate we stated “[i]f satisfy necessary to the elements while not only guilt defendant’s supports evidence were nonethe question, of the offense support other but does not some offense legislature when contemplated less the conclusion that the defendant commit- being it for the offense punishment set the ted the instant offense for which he is Stanke, 764 sentenced. State v. in a being particularly sentenced serious principle 827-28 This it way, upon then cannot be relied as at issue in this case. departure.” Id. ground Third, availability have limited the we Ford, Subsequently, in v. we con- State sup- offense to underlying separate facts a underlying whether facts convic- sidered for the convic- port upward departure an a single tions out of behavioral principle is also at tion at issue. This incident, and which show the defendant restrictions on the issue this case. Our in a being committed the offense sentenced separate offenses underlying use of facts way, serious are “available” particularly Ott, originated in v. depart upward to State Ford, v. upward departure. for an whether the district where we considered (Minn.1995). 214, 229-30 We 539 N.W.2d impose to con- court could base a decision may concluded that such facts be used to sentences, departure was a secutive which depart. Id. at 230. guidelines, on facts under the pre- first-degree inci- Ford was convicted of uncharged separate an murder, Ott, first-degree meditated murder of dent. State officer, attempted first-degree police un- a and concluded facts We murder, a in connection with the murder of uncharged separate incident derlying an shooting of an inno- officer and the departure police are an for impermissible basis bystander. Id. at 217. The district that the cent those facts do not show because departure on the imposed upward in court being offense sentenced was committed first-degree murder conviction. way. attempted particularly serious Id. gave several for the Id. The court reasons and concluded that it was not. (1) upward departure, including: Ford’s N.W.2d Spaeth was (2) risk; put people conduct number convicted of first-degree felony murder significant psychological a victim suffered during committed a burglary, first-degree (3) conduct; trauma as a result of Ford’s a burglary, assault, first-degree and for a bystander significant psychologi- suffered home invasion and murder. Id. at 189. conduct; cal trauma as result of Ford’s mandatory He received a term of life im- (4) by revenge; the crime was motivated prisonment first-degree murder (5) was the defendant “mastermind” be- 20-year conviction and a consecutive sen- (6) crime; hind the the crime was conviction, burglary tence for the which planned gang activity. in furtherance of was an departure. durational Id. Id. at 230. The district court found four reasons for (1) (2) the departure: death; the victim’s explained:

We vulnerability victim’s at the time of clearly Reasons and 6 to relate (3) death; gratuitous violence of the planning Ford’s and execution of Haaf s murder the form of repeated blows to However, 1, 2, murder. reasons and 3 head; (4) the victim’s and mutilation of the support guilt Ford’s of murder and at- body before and after death. Id. at 196. tempted equally. murder Since these “only reasons are not evidence that sup- Spaeth argued on appeal that the dis- ports guilt of some other of- [Ford’s] trict court improperly departed upward fense,” they are allowable reasons for presumptive from the sentence for the departure. burglary conviction. We concluded that 884). Ott, (citing Id. 341 N.W.2d at provided by the reasons the district court words, In other we determined in Ford improper were departure. bases for Id. planning facts related to the of the explained: “Spaeth received a life sen- murder were unrelated to the attempted conviction, tence for the murder it and, therefore, Ott, murder under did not impermissible aggravating to use as attempted show murder was com- vulnerability factors conduct that resulted particularly mitted in a way. serious But justify up- [the murder to victim’s] relating we also concluded that facts departure ward the burglary convic- attempted both the murder and the mur- however, tion.” explain, Id. We did not der—the risk to others and the trauma rejected whether we be- that the victim and others suffered—were it necessary cause was based on facts attempted available to enhance the murder prove an element of murder they supported sentence because the con- (and depart upward thus their use to con- attempted clusion that the murder was punishment), stituted double or because in particularly way. committed a serious burglary those facts did not relate to the supported That those facts also a conclu- conviction. Given that some of the facts sion that the murder was committed in a by depart up- used the district court to way particularly serious was of no conse- first-degree felony ward are elements of Ford, quence. See at 230. murder, not, while others are we read

In Spaeth, Spaeth simply State v. we considered wheth- to reiterate the rule that underlying separate being er conduct a facts that not to the offense convic- do relate (and cannot) that permissible upward tion was a basis for an sentenced do not show commit- departure being durational on a conviction that the offense sentenced was incident, in part particularly way. was of the same behavioral ted serious mind, punishment. Edwards in constitutes double general principles these With Thao, relies on State v. Essential- Edwards’ sentence. we turn to (Minn.2002), that support to his contention sup- to arguments two ly, asserts Edwards from the bystanders arising risk to district court the contention that the port his into a crowd of seven firing of of six bullets upward an imposing erred in contemplated by a fact the First, people that facts was argues he 30 months. punishment it set the for may legislature never when another conviction underlying shooting under Minn.Stat. depar- drive-by upward for an be used as the basis 609.66, that subd. le. argues Edwards Essentially, ture. Ott, Ford, Spaeth pre- in holdings our Thao, In the defendant was convicted of departure. upward

clude his by drive-by murder shoot- second-degree required prove to ing, which availability that the agree We drive-by shooting crime of lesser-included incident as a underlying separate of facts of the sentenced as one of the elements departure is limited. basis for an held offense. 649 N.W.2d Spaeth, we concluded In both Ford and firing multiple the random shots question did not relate to that the facts contemplated group people into a Specifically, being the offense sentenced. facts by legislature predicate as the offense facts did not show that the those upon presumptive which the sentence committed in a being sentenced had been by drive-by murder shoot- second-degree But Ford particularly serious manner. based, and therefore could not be ing is the dis Spaeth expressly do not bar justify upward departure. to Id. used depart to considering trict court from facts at 424. to an simply because those facts related with our ruling out of the same Our Thao is consistent other offense arose may that the district court Accordingly, principle we con second behavioral incident. Ott, Ford, upward departure on facts not Spaeth do not not base clude using necessary satisfy the elements of the prohibit the district court from were none question, when offense in but which “overlapping” depart upward facts to legislature multiple contemplated of theless a defendant is convicted of presumptive sentence. single of a behavioral when it set fenses out incident, second-degree a conviction of Specifically, if facts show that the defen those may by drive-by shooting murder be satis being dant committed the offense sen firing one bullet that way. fied the defendant particularly tenced serious Thao, and kills the victim. Under strikes Second, argues legis- Edwards may not any additional shots fired be used the “facts” that contemplated lature upward departure. for an The depart upward on his district court used upward departure that an based premise is legislature set assault conviction when the already contemplated by legis on facts drive-by shooting. punishment punishment when it set the for the lature Edwards was convicted and sentenced in double question offense in would result drive-by shooting involving two counts of unfairly exag punishment and therefore argues Khaosorn Ruos. He Khaosan and criminality of the defendant’s gerate the drive-by shooting to the those facts related Osborne, 715 N.W.2d conduct. State v. up” sentencing pur- have been “used (Minn.2006). 436, 447 poses, and the use of those factors the distinguishable But from on the first- Thao is support upward departure his reasons. important Din before us for two involving conviction case degree assault

605 First, the statutes at issue are different. victions multiple relate to victims.5 Id. at Thao, 359-60, In of the defendant was convicted 161 at creating N.W.2d 672. In by drive-by second-degree murder shoot- exception, this we noted that the California ing. Drive-by 649 at 417. shoot- N.W.2d Supreme Court had created a similar ex offense, ing is an of that and the element State, ception 11, in Neal v. 55 Cal.2d 9 firing multiple contemplated of shots was 607, (1960). Cal.Rptr. 839, 357 P.2d 844-45 by legislature setting presump- Tahash, 360, 281 Minn. at 161 N.W.2d at tive sentence for that offense. In this 672. explained: case, however, Edwards was convicted of purpose of protection against “[T]he assault, not which does include multiple punishment is to insure that the drive-by shooting as either an element of punishment defendant’s will be commen- offense, or as a lesser-included offense. surate with his criminal liability and a Consequently, legislature did not con- defendant who commits an act of vio- template firing the risk associated with the lence with the intent to harm more than multiple group people of shots into a of person one likely or means to cause when it the presumptive set sentence for harm persons to several culpa- is more first-degree assault. ble than a defendant only who harms Second, multiple this case involves vic person.” one tims, and Thao did not. A discussion of the Tahash, 361, 281 Minn. at 161 N.W.2d sentencing principles have applied we 672 (quoting People v. Ridley, 63 Cal.2d involving multiple cases victims will be 671, 796, 124, 47 Cal.Rptr. 408 P.2d helpful understanding importance of (1965)). words, In other we determined distinction. Minnesota this Statutes multiple arising convictions from a (2006), § 609.035 precludes punishment for single behavioral incident did not violate more than one offense committed a our rule against punishment double be defendant in the course of a single behav multiple involved, cause where victims are ioral incident. This statute is intended to equally defendant culpable to each protect multiple defendants from punish victim. See State v. Skipintheday, 717 thereby punish ment and to ensure that 423, N.W.2d ment is commensurate with the defen Bookwalter, criminality. dant’s State v. Recently, Supreme the California Court 290, 541 N.W.2d 293-94 In considered issue similar to the issue Tahash, Stangvik State ex rel. v. 281 Minn. Oates, presented in this People case. In 353, 359-60, (1968), 12 Cal.Rptr.3d Cal.4th we a “multiple-victims” excep established (2004), P.3d the court considered tion to Specifically, Minn.Stat. 609.035. statutory prohibition whether California’s “multiple we concluded that against crimes on multiple punishment precluded the dis- multiple permit imposition victims trict imposing sentencing court from en- Tahash, more than one sentence.” (Oates), hancements where the defendant 359, 161 Minn. at at 672. committing drive-by shooting, while fired group people, injur- two shots at a of five multiple-victims excep Under tion, may sepa argued defendants be sentenced one. The State that the dis- rately for trict multiple applied convictions from court should have California’s statutory the same behavioral incident if those eon- firearm enhancement each 609.035, 3-6, statutory exceptions e.g., §§ There are number of Minn.Stat. subds. See, 609.251, (2008). single behavioral incident rule. 609.585 aggravated-robbery attempted-murder convictions. for Jackson’s convic- Oates’ five agreed imposi- and held that Id. The court on conduct uncharged tion sentencing enhancements tion of identical lesser-included assault. Id. at 356. We on the same for all five convictions based departure concluded that the was imper- permissible facts was under California’s (1) prohibits missible because our case law exception. at 67. The multiple-victims Id. basing upward depar- district courts from explained court its decision with same uncharged tures lesser-included of- in “A language we used Tahash: defen- (2) fenses, upward departure and was dant who commits an act of violence with greater than the that sentence could have person harm more than one the intent to imposed charged been had Jackson been likely a harm to means to cause with and convicted of the at assault. Id. persons culpable several is more than a expressed 357-58. We concern that only person.” defendant who harms one prosecution “manipulating” was the sen- Oates, Cal.Rptr.3d 88 P.3d at 65. tencing guidelines by undercharging Jack- Jackson, son. Id. at 358. Unlike Ed- Oates,

Under the increased charged wards’ sentence was based on culpability multiple that attends victims conduct, sentences, only supports multiple greater not but and his sentence was not support sentencing can also identical de than the sentence he have could received partures on the same for each based facts imposed had the district court consecutive imposed. reasoning sentence find the We drive-by shooting sentences on his convic- persuasive. multiple Oates vic Where tions, required which would not have a tims are harmed a defendant’s conduct departure guidelines. under More- incident, during single behavioral that over, there is no evidence of sentence “ma- culpable defendant more than if is he had nipulation” by the State. For those rea- only harmed one victim.6 sons, we conclude that Jackson does not apply here. that argues departure Edwards his vio- Jackson, holding lates our State v. Accordingly, we conclude that

N.W.2d 353 But Jackson when a defendant is convicted of distinguishable from this case. In several Jack- son, involving multiple we considered whether the offenses victims district incident, properly out single based behavioral a sen- suggests multiple-vic depend 6. The multiple dissent statute would on "whether exception punishment grossly tims to Minn.Stat. 609.035 does sentences would result in incorporate proportionality proportion gravity not notions of be out of of the of fense”). adopted predate cause it was at a time when Minneso In other cases that the cre sentencing appel sentencing guidelines, ta used indeterminate ation of the we stated sentencing adopted multiple late court "[w]e review was limited. have the rule that Tahash, disagree. may imposed multiple In which was decided be sentences victim used, provided unfairly when indeterminate we cases the sentences do not expressly proportionality played exaggerate criminality noted of the defendant's Rieck, multiple- role in our decision to create the conduct.” State v. DeFoe, (Minn. 1979); exception victims and in review of sentences see also State v. (Minn.1979) imposed (holding in violation of the statute. in cases 360-61, (not involving multiple "[allowing Minn. 161 N.W.2d at 672-73 victims that philosophy multiple sentencing unfairly "[t]he behind statute ... does not ex punishment aggerate criminality ... was ... make both of the defendant's prosecution culpability” commensurate with conduct and the double sentence seems com indicating multiple culpa that whether sen with mensurate defendant’s increased multiple bility”). tences for victims would violate the teneing may “overlapping” use facts supports The record the dis- up- of those offenses as the basis for an trict court’s conclusion that Edwards’ as- that departure, provided ward those facts generated sault significant risk of bodily show that the defendant committed the harm to a large people. number of There- being offense sentenced in a particularly fore, an upward departure is warranted. way.7 serious In the context of multiple Second, arising

victims out of the same behavioral we conclude that the incident, sentencing court must deter- district court did not err when it used the mine, (1) basis, victim-by-victim on a bystanders risk to arising from Edwards’ any whether facts show that the offense conduct as an aggravating factor. Risk to being sentenced has been in a committed bystanders assault, is not an element of (2) particularly way, serious whether any offense, lesser-included and thus its any sentencing principle prohibited the use use depart upward to does not violate depart upward those facts to on the Blanche.9 While a fact may be unavailable being offense sentenced.8 imposing when a sentence for an offense (because involving victim the fact was

Performing two-step analysis, this legislature considered the assign when we first conclude that the district court did ing punishment for the sentenced of not abuse its in finding discretion 1), involving fense victim this does not Edwards’ assault of Din was committed make that fact unavailable when the dis a particularly way. serious We have re trict court imposes a sentence for an of peatedly bystanders held the risk to is fense involving victim if the appropriate legislature factor for courts to consid did not determining question er when consider the fact in seriousness of a when See, Blanche, crime. e.g., assigning punishment 696 N.W.2d at for the offense 379; Back, Thus, 277 involving victim 2.10 by- risk to argues "risk-creating The dissent that we have causing created an cause the conduct” of "overlapping "great contrary bodily facts” rule that is to harm” was considered when the jurisprudence unnecessary. offense-severity first-degree our The dis level of assault First, higher sent is mistaken drive-by for two reasons. our was established at a level than sentencing principle aptly shooting. Essentially, argues is more character the dissent multiple-victims exception ized as the because assaufr includes anas element the holding "overlapping” injury bystanders. disagree. our allows facts to be risk of We 609.221, involving multiple § used in cases victims aris Under Minn.Stat. subd. first- ing single degree great out of a behavioral incident. Sec assault is an assault that "inflicts ond, multiple-victims bodily exception on the is con harm” victim. see no lan cept guage that dates back to 1968 and well in the statute that extends its reach to Skipintheday, bystanders. established in our law. the risk of harm to 426; Tahash, 359-60, N.W.2d at 281 Minn. at legislature recently 10.We note that the clari- 161 N.W.2d at 671-72. § fied the extent to which Minn.Stat. 609.035 ability analysis impose limits a propriety 8. Our here is limited to the district court’s upward departure. upward departures judicially Minnesota Statutes under the cre- however, (2008), § multiple-victims 244.10 exception, ated which addresses departures, was amended in 2009. It now does not consider whether other de- "[njotwithstand- provision stating, partures permissible includes a are under different cir- 609.035, cumstances, including statutory section 609.04 or or other law to additional ex- ceptions contrary, to Minn.Stat. when court sentences an of- 609.035. conviction, felony may fender for a the court up- aggravated beyond 9. The dissent asserts that the "30-month order an sentence range specified sentencing guidelines ward assault amounted to in the punishment grid any aggravating twice for the same conduct” be- based on factor guide- the proportionality, achieve the district To fact available to was a standers grid pre- a to determine the employ lines depar- upward imposed when it for felonies. Minn. sumptive sentence assault conviction. ture on Edwards’ II.C., (Sentencing IV Sent. Guidelines Affirmed. Grid). of the The vertical axis Guidelines offense. severity of the grid represents (Offense Id., II.A, TV, Severity Refer- V PAGE, (dissenting). Justice Table).1 repre- The horizontal axis ence I would conclude dissent. respectfully I history criminal the defendant’s sents sentencing departure for Id., II.B, score. IV. imper- was based the assault conviction by the severity is determined Offense un- factors: conduct aggravating missible Id., II.A. To com- offense of conviction. of the offense and derlying the elements score, history for each pute the criminal convictions. underlying separate conduct felony sen- conviction for which a felony Nevertheless, the assault and because imposed before the stayed tence was eligible are drive-by shooting convictions is as- sentencing, current the offender sentences, I permissive signed designated points; consecutive number of assigned is points and re- the value of the based Edwards’ sentence would vacate severity pre- level of each of the upon the resentencing. court for mand to the district Id., offenses. II.B.l.a. To determine vious overlapping of an adoption The court’s sentence, the cell on the court locates in rule, unnecessary this which is facts corresponds to the offense grid case, precedent. overrules our effect history the criminal score. Oth- level and Departures. purpose The Durational relatively minor of- er than the cells for Sentencing Guidelines “is to the Minnesota fenses, three numbers. each cell contains rational and consistent sentenc- establish is the minimum “The lowest number proportional ... are ing standards which cell, particular for that guidelines sentence severity of the offense of conviction guide- number is the maximum highest criminal the extent of the offender’s sentence, and the middle number is lines I. “Ra- history.” ‘pre- Minn. Sent. Guidelines referred to as the might what be ” State v. Jack- implicit sumptive in the creation fixed sentence.’ tionality goals were son, 353, 359 n. itself as an design of the commission agency charged with collect- independent keeping guidelines propor- In with the information, drafting guidelines, and recognized have tionality goals, we Rich- implementation.” monitoring their into ac- legislature has taken factors Frase, Sentencing ard S. Guidelines determining degree or seri- count 1978-2003, Minnesota, grounds Crime & Just. of the offense are not ousness Shattuck, (2005). 131,132 upward departure. State overlapping out Act court to consider facts course of conduct.” from the same 11, 2009, single a basis for § of a behavioral incident as May ch. art. 2009 Minn. - -, (codified upward departure when a defendant at Minn.Stat. Laws 244.10, 5a(b) involving multi- for several offenses (Supp.2009)). sentenced This subd. ple victims. apply to this case. See clarification does not (stating applies to crimes id. that amendment 1, 2009). arrayed sep- Specified on a August sex offenses are after But committed on or eight severity Minn. grid levels. holding today with this statu arate into is consistent our II.A, IV. Sent. Guidelines tory because it allows district clarification pass We under- its through parking lot and shots determining stood that a fact relied on in were fired. degree guilt “plays of the defendant’s The district court found Edwards not determining severity role in the offense guilty of attempted first-degree murder. ultimately in determining level and the The court noted that Edwards fired to- Brusven,

presumptive sentence.” State v. group ward the traveling while at around (Minn.1982). 591, 593 We 30 to 40 per miles hour. While testimonies recognized have also underly- conduct estimating the distance between Edwards ing one sup- conviction cannot be used to feet, and the group “cluster[ed]” around 30 port a departure sepa- on sentence for a the court found that forensic evidence and Spaeth, rate conviction. State v. 552 testimonies group’s as location in 187, N.W.2d The ratio- parking lot indicated the distance nale behind these rules “is that a defen- feet,” “easily multiple was of 30 or “con- punished dant should not be twice for the siderably greater than 30 feet.” Given the Osborne, same conduct.” speed car, distance and of the the court N.W.2d recently found evidence of intent to kill lacking. Jones, reaffirmed these rules. State v. In finding guilty Edwards of the first- (Minn.2008) (conclud- N.W.2d 849-50 degree felony assault and drive-by shoot- ing that it improper would be to enhance ings, the court made following specific criminal sexual conduct sentence based on findings: conduct neglect endanger- January 1. On in Olmsted convictions); Jackson, ment at Minnesota, County, Defendant as- (concluding 357-58 that departure ag- for saulted Makara Din by intentionally gravated robbery sentence based on un- inflicting Din, bodily harm on charged assault would have improper been doing an act with intent to Din cause charged). had the offense been bodily to fear Spe- harm or death. cifically, Defendant multiple fired charged Edwards was with three counts gunshots Din, at or toward Makara (one attempted per murder striking one bullet Din. (Makara victim), first-degree Din), assault (one drive-by and three counts of shooting 28, 2006, January 4. On in Olmsted victim). per The prompting events Minnesota, Defendant, County, charges began with Matt Watson confront- vehicle, riding while a motor reck- ing Phalla Krouch and Yong Sokha at a lessly discharged a firearm firing convenience at store around a.m. on a person; specif- at or toward another Saturday. young The men decided to en- ically, Makara Din. gage in combat another location. Wat- 28, 2006, January 5. On in Olmsted- son called help. Vong Edwards for called Minnesota, Defendant, County, Din, telling Din to strip meet them at a vehicle, riding while in a motor reck- mall, mall. Din drove to strip bringing lessly discharged by firing a firearm two others him. Believing with that Din person; specif- at or toward another going home and concerned about his ically, Khaosan Ruos. intoxication, girls two Din in followed an- other car got safely. to see he home 28, 2006, January 6. On in Olmsted girls surprised Minnesota, Defendant, The were when Din County, turned vehicle, into mall parking They lot. were still riding while a motor reck- byor their car when car lessly discharged by firing Edwards’ made a firearm Consecutive Sentences. Permissive person; spe- another toward or] [at multiple is convicted of an offender When Khaosorn Ruos. cifically, offenses, circum- in certain limited current conviction, a se- first-degree assault The stances, permis- are consecutive sentences IX offense with Edwards’ verity level The II.F. sive. Minn. Sent. Guidelines four, pre- had a history score of criminal permis- outline the criteria guidelines 114 to 160 months. The range of sumptive Id., II.F.2. consecutive sentences. sive for the 30-month stated reason provide a list of offenses guidelines The drive-by shooting: “that was the eligible permissive consecutive that are times at or toward a fired seven Defendant felo- multiple in eases of current sentences in the immediate group people of nine Id., First-degree ny convictions. II.F.2.b. area, injury them to exposing all of felony drive-by shooting are assault and Din, and, death, in addition to Makara Id., Ordinarily, for offenses. VI. eligible Ruos.” seriously injuring Khaosan to an- offense sentenced consecutive each offense, history criminal score other a zero conduct, however, fac risk-creating The presumptive du- is used to determine liability for greater Edwards’ tored into Id., case, II.F.2. In Edwards’ ration. bodily great The harm re the assault.2 conviction, drive-by shooting a se- second drive-by shooting cata sulting from the crimi- verity offense with a zero level VIII a as that offense to pulted score, history presumptive range a nal has sault, severity the offense level elevating Mathematically of 41 to 57 months. IX, increasing pre to from VIII 190- speaking, it seems to me the same sentence dura sumptive “top-of-the-cell” by month duration could be attained sen- by The use of the drive- tion 55 months. presumptive tencing applicable within the by shooting support up to the 30-month offense, of each such as months range for the assault amounted departure ward and a consecutive for the assault conviction conduct. punishment twice for the same to drive-by shooting months for the second Stanke, 824, 827- v. Cf. conviction.3 (Minn.2009) (holding vulnerability into peace greater of a officer factored permissive to a con- impose The decision resulting liability fleeing peace officer discretionary with the secutive sentence death). State, in I would hold v. district court. See Neal impermissible ag was based “Consecu- factors: conduct sentences are a more severe sanction gravating tive using under the intent of them is to elements of the offense and conduct because That, however, longer period for a confine the offender lying separate convictions. Minn. the of than under concurrent sentences.” would not end the matter because Guidelines, cmt. II.F.01. “In all Sent. eligible permissive were consec fenses suggests judges cases the Commission utive sentences. bodily attempt inflict infliction of or to First-degree is an assault which "in- tional 2. assault Id., 10(2). upon another.” subd. bodily harm great harm.” Minn.Stat. flicts 609.221, (2008). Second-degree § as- subd. 1 dangerous weap- Believing permissive "with a sen- sault is an assault 3. consecutive 609.222, (2008). § tencing might apply, subd. 2 Court Services included on.” Minn.Stat. presentence investiga- options with intent in the An assault is "an act done various bodily the rec- report. The overall duration of in another of immediate tion cause fear 609.02, duration sentence was close to the Minn.Stat. subd. ommended harm or death.” (2008). 10(1) imposed the district court. "the inten- An assault is also carefully whether the purposes precise computation consider of the duration of (in each sentencing guidelines pun- terms of sentence. proportional severity ishment of the Overlapping Facts. I disagree further history) offense and the criminal would be standard, with the court’s new pro- which served best concurrent rather than con- vides that when several convictions involv- secutive sentences.” Id. ing multiple victims arise out of a single incident, behavioral the court “may use bearing It is also worth mind that ‘overlapping’ facts of those offenses” for response Blakely,4 legislature the 2005 departures. The court People relies on substantially sentencing broadened the cell Oates, Cal.4th 12 Cal.Rptr.3d ranges. The intent was to reduce upward (2004). 88 P.3d 56 Oates involved Cali- departures by judi- durational expanding gun-enhancement fornia law that added Jackson, cial discretion. 749 N.W.2d at years “25 to life” to the defendant’s deter- Consequently, severity IX level prison minate term for discharging a fire- offense with a zero criminal history score arm in committing a listed felony.5 Id. at now has a range of 29 months 57. The defendant Oates was convicted (74-103), and the same offense with a murder, of five counts of attempted one for history criminal score of four has a range person group each in the at which he fired. (114-160). Previously, of 46 months all Id. at 58. The Oates court determined IX range level cells had a of ten months. language, history, and purpose of Jackson, 749 N.W.2d at 360. IX The level required the law enhancements for each grid cell on the 2004 with a criminal histo- judicially crime and that the created multi- ry score of four a range has of 129 to 139 ple-victims exception to the statutory bar (2004). months. Minn. Sent. Guidelines IV multiple punishment permitted the en- words, by In other operation of the broad- 60, hancements. Id. at 64-65. I see little judicial ened in sentencing, discretion connection between California’s indetermi- case, Edwards’ 21 additional months scheme, nate-enhancements in which the was allowable without a reason. parole board determines the defendant’s date, ultimate release and our determinate Although the district might court have sentencing system in which the ultimate reached the same sentence duration with release date is determined the court- permissive consecutive sentencing, we imposed guidelines sentence. determination, presume should not much authority less assume for resentenc- Moreover, multiple-vic- we crafted the ing in place. Consequently, the first I exception § tims to Minn.Stat. 609.035 would vacate Edwards’ sentence and re- system when our sentencing did not re- mand the matter to the district court for quire rationality proportionality and be- resentencing, to include consideration of cause of the of a parole existence board to whether permissive sentencing consecutive decide the defendant’s ultimate release criteria; so, guidelines meets the if Shattuck, (de- wheth- date. 704 N.W.2d at 145 purposes guidelines er the of the would be scribing parole authority board’s to parole served best consecutive sentences rath- discharge a defendant regard without sentences; sentence). er than concurrent and if con- length of the Under inde- sentencing secutive is deemed appropriate, sentencing systems, terminate as existed 296, 303, 4.405(3) Blakely Washington, (defining v. 542 U.S. 5. Cal. Ct. R. an enhance- (2004). imprisonment ment as "an additional term of 124 S.Ct. L.Ed.2d 159 403 term”). added to the base 612 effectively overrul- guidelines, portionality goals reha-

in Minnesota before goal, and important was the Jones and Jackson. doctrine of “[T]he bilitation fit the offender and directs that we adhere to “punishment should stare decisis v. New merely might not the crime.” Williams former in order that there decisions York, 241, 247, Ross, stability 337 U.S. S.Ct. in the v. be law.” State (1949); (Minn.2007) (citation see Minn.Stat. L.Ed. N.W.2d (1976) omitted) (internal of (requiring 609.115 estimates quotation marks omit- ted). rehabilitation in prospects of defendant’s Ordinarily, require compel- “[w]e directs). if presentence report so ling precedent.” reason to overrule Appellate proportionality review for Her, (Minn.2008) Jones, sentence was not even allowed. 745 (citation omitted) (internal quotation n. N.W.2d at 849 3. omitted). compelling marks No such rea- Therefore, I son exists here. dissent. however, Proportionality rationality, guidelines system. are central ANDERSON, H., (dissenting). PAUL J. appellate While court review of sentence promotes sentencing policy, more rational join I in the Page. dissent Justice issues, [Sentencing “on most Guide- primary

lines retains control Commission] MEYER, (dissenting). J. sentencing policy over formulation.” join I in the Page. dissent of Justice Frase, “Using at 204. supra the commis- expertise independence, sion’s

guidelines seek coordinate

policy with available correctional resources goal

... specific avoiding prison with a of

overcrowding.” Id.

A sentencing posi- commission is well aggregate

tioned to consider the effects Minnesota, Respondent, of STATE of all laws and to make sure specific sentencing decisions overall, up policy. add to an sensible It WISKOW, Appellant. Cain Lee can every monitor the sentences for No. A08-1835. project impact prison crime and The permanent sentencing resources. of Appeals Court Minnesota. body thus becomes de facto interest Nov. group system-wide for cost concerns and rationality. Barkow, Crime,

Rachel E. Administering (2005). L.Rev. UCLA

In I summary, would conclude that the

upward sentencing departure improp-

er, sentence, vacate Edwards’ and remand resentencing to include consideration of I propriety consecutive service.

would also that the overlapping conclude

facts rule supplants old rule, undercutting guidelines pro-

conduct

Case Details

Case Name: State v. Edwards

Court Name: Supreme Court of Minnesota

Date Published: Nov 19, 2009

Citation: 774 N.W.2d 596

Docket Number: A07-1012

Court Abbreviation: Minn.