State of Minnesota, Respondent, vs. Timothy Kurzejeski, Appellant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

 STATE OF MINNESOTA

 IN COURT OF APPEALS

 C7-97-800

State of Minnesota,

Respondent,

vs.

Timothy Kurzejeski,

Appellant.

 Filed March 31, 1998

 Affirmed

 Foley, Judge**

Ramsey County District Court

File No. K2-96-2715

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Foley, Judge.

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

U N P U B L I S H E D O P I N I O N

 FOLEY, Judge

Appellant Timothy Allen Kurzejeski was found guilty of attempted second-degree murder, assault in the first degree, and assault in the third degree. On appeal, he contends the trial court erred by (1) incorrectly instructing the jury on attempted second-degree murder, and (2) failing to instruct the jury on the lesser-included offense of attempted first-degree manslaughter. Kurzejeski also contends the trial court abused its discretion in deciding to depart upward from the presumptive sentence. We affirm.

FACTS

In 1996, Kurzejeski became acquainted with Shauna Laine, manager of Boxseat Restaurant/Sports Bar. They began seeing each other socially and shortly thereafter their relationship became intimate.

On July 20, 1996, Laine and Kurzejeski argued at Boxseat after he took her purse and then kicked in the stall door while Laine was using the bathroom. The next day, Laine contacted Kurzejeski to retrieve some of her personal property from his home and end the relationship. However, when Laine arrived at Kurzejeski's home, he grabbed a gun from the closet and threatened to kill himself. Laine and Kurzejeski argued again, and Kurzejeski then agreed to give the gun to his roommate.

On August 23, Kurzejeski and his brother, Brian, went to a bar for lunch and drinks. After leaving the bar, Kurzejeski decided to go to Laine's house to apologize and to let her know that he was suicidal. When he arrived at her home, Kurzejeski knocked on the back door, but Laine did not answer. He then decided to try the front door.

Laine saw Kurzejeski standing at the door, but would only talk to him through the locked screen door. Kurzejeski apologized to Laine and told her that he wanted to work things out. Kurzejeski then asked Laine for a glass of water. When Laine unlocked the door to retrieve the empty glass, he grabbed the door and stepped onto the porch. Kurzejeski asked Laine to hug him, but she refused and asked him to step outside. Kurzejeski refused and began walking toward Laine. She threatened to call the police, but Kurzejeski jumped in front of Laine to stop her from using the phone. She then ran through the kitchen to get out the back door, but Kurzejeski pinned her against the kitchen counter. Laine tried to break free and reach the dining room phone, but Kurzejeski grabbed her by the throat. Laine struggled as Kurzejeski dragged her from the kitchen sink, to the dining room and then to the living room. Kurzejeski then pushed Laine's face into the pillows on her couch. He asked her if she needed a breather, but continued choking her. Laine began foaming at the mouth and she urinated in her pants. Everything became fuzzy and she soon lost consciousness.

At some point, Kurzejeski realized what he was doing and stopped choking her. He then ran from the house and drove away. Later, after learning that Laine was alive, Kurzejeski told his brother he was going to "finish the job." However, Brian was not sure whether Kurzejeski was referring to committing suicide or killing Laine.

At trial, Kurzejeski testified that he never intended to kill Laine, but that after he grabbed her he suffered an "out-of-body" experience. He also testified that this "experience" prevented him from realizing what he was doing to Laine. A jury found Kurzejeski guilty of attempted second-degree murder, assault in the first degree and assault in the third degree. He was sentenced to 229 months, an upward departure from the presumptive 153-month sentence.

D E C I S I ON

Clarification of Jury Instructions

The selection of language in the jury charge is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989).

Kurzejeski argues that the trial court judge abused his discretion by incorrectly responding to a jury request for further clarification of "intent." He contends the initial jury instruction was adequate and properly defined "intent" and that further clarification given by the trial court constituted a misstatement of the law. Kurzejeski also argues that an "appreciable space of time between the intention of committing the crime and the act of the crime itself" is required to establish the intent necessary for attempted second-degree murder. He contends, therefore, that the court's reliance on State v. Prolow, 98 Minn. 459, 108 N.W. 873 (1906) to support the clarifying jury instruction, is misplaced.

An essential element of the crime of attempted second-degree murder is acting with the intent to kill. Minn. Stat. § 609.19, subd. 1 (1996); see also Minn. Stat. § 609.02, subd. 9(4) (1996).[1] When there is a question whether the defendant intended to kill or only injure, conclusions must be drawn from the totality of the circumstances. State v. Alladin, 408 N.W.2d 642, 648 (Minn. App. 1987) (citing State v. Marsyla, 269 N.W.2d 2, 5 (Minn. 1978)), review denied (Minn. Aug. 12, 1987). Elements of intent relating to attempted murder are states of mind and hence "are generally proved only by inferences drawn from a person's words or actions in light of all the surrounding circumstances." State v. Andrews, 388 N.W.2d 723, 728 (Minn. 1986). Furthermore, the defendant's statements as to his intentions are not binding on the jury if the defendant's acts demonstrate a contrary intent. State v. Lundstrom, 285 Minn. 130, 140, 171 N.W.2d 718, 725 (1969). On review, the trial court's jury instructions are considered as a whole. State v. Daniels, 361 N.W.2d 819, 831-32 (Minn. 1985).

During deliberations, the jury posed the following question to the trial court judge:

Need clarification of the law. Can intent occur in as short of a time span as one second or part of one event? The jury.

Over the objection of defendant's counsel, the judge repeated the original jury instruction on intent, but added:

There need be no appreciable space of time between the intention of committing the crime and the act of the crime itself.

We hold that the trial court's further clarification of the original jury instruction correctly stated the law, and thus did not constitute an abuse of discretion. Prolow establishes that premeditation can be found absent an "appreciable time between the intent to kill and the act of killing." Id., 98 Minn. at 463, 108 N.W. at 875. Mere intent can also be found without an appreciable time between the intent to kill and the act of killing.

Attempted First-Degree Manslaughter Instruction

The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.

 Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986).

Kurzejeski also contends that the trial court abused its discretion in failing to instruct the jury on the lesser-included offense of attempted first-degree manslaughter.

Minn. Stat. § 609.20 (1996) provides in part:

Whoever does any of the following is guilty of manslaughter in the first degree * * * intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances, provided that the crying of a child does not constitute provocation * * *.

The defendant's emotional state alone does not mitigate attempted murder to attempted manslaughter; the words and acts of the victim must have been enough to provoke a person of ordinary self-control. State v. Auchampach, 540 N.W.2d 808, 815 (Minn. 1995). Furthermore, the determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court. LaMere v. State, 278 N.W.2d 552, 558 (Minn. 1979). When a defendant fails to request an instruction on a lesser-included offense, his right to obtain relief on this ground is forfeited, unless the trial court's failure to give the instruction sua sponte constituted plain error of a prejudicial nature. State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995). However, where the evidence warrants an instruction, the trial court must give it. State v. Lee, 282 N.W.2d 896, 899 (Minn. 1979); see State v. Galvan, 374 N.W.2d 269, 271 (Minn. 1985) (first-degree manslaughter is lesser-included offense of felony murder in second degree). But, failure to give an appropriate instruction on lesser offenses is a ground for reversal only if the defendant is prejudiced. State v. Edward, 343 N.W.2d 269, 276 (Minn. 1984).

The record reveals that Kurzejeski did not request an instruction for attempted first-degree manslaughter; therefore, the issue is whether it was plain error for the court to fail to give this instruction on his own initiative.

On review of the record, we cannot say that the words or acts of the victim at the time of the assault would constitute sufficient evidence of provocation to require an instruction on attempted first-degree manslaughter. Kurzejeski testified that Laine "chuckled" at him when he apologized and suggested that they get back together. However, Kurzejeski was outside the victim's locked screen door when she allegedly chuckled at him and had the option to leave. Although Laine's "mocking" response to Kurzejeski may have "angered" an ordinary person, we cannot conclude that her actions would provoke an ordinary person to try to choke the individual to death. We hold, therefore, that this evidence did not warrant an instruction on attempted first-degree manslaughter, despite Kurzejeski's failure to request one.

Sentencing Departure

Decisions to depart from the sentencing guidelines rest within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).

Lastly, Kurzejeski contends that the trial court abused its discretion by departing upward from the sentencing guidelines. He contends the record does not support the departure and his sentence should be reduced to the presumptive term.

The Minnesota Sentencing Guidelines provide a non-exclusive list of factors to be used when determining whether a departure is warranted. Minn. Sent. Guidelines cmt. II.D.201; State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). In deciding whether to depart, the sentencing court must decide whether the defendant's conduct is more or less serious than that typically involved in the commission of the crime in question. State v. Cox, 343 N.W.2d 641, 643 (Minn 1984). Upward departure is within the sentencing court's discretion only if "substantial and compelling" aggravating circumstances are present. State v. Davis, 540 N.W.2d 88, 91 (Minn. App. 1995) (citing Garcia, 302 N.W.2d at 647). Invasion of a victim's zone of privacy, the home and curtilage, is an aggravating factor to consider for upward departure. State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992).

The trial court considered several factors in deciding to make an upward departure from the sentencing guidelines; most notably, that the attack had taken place in Laine's home, thereby violating her zone of privacy. The trial court further found that Kurzejeski exhibited "particular cruelty" toward Laine by asking her, "[d]o you need a breather?" while continuing to strangle her. The trial court also noted that Kurzejeski failed to contact police, call 911, or render medical assistance. The trial court then remarked that Kurzejeski's story of an "out-of-body" experience was highly unbelievable given his recognition that he thought he had killed Laine. The trial court concluded that the evidence, coupled with Kurzejeski expressions of self-pity and failure to show remorse for his actions, warranted an upward departure.

We believe the sentencing order exhibited the trial court's consideration of all relevant factors. Furthermore, the evidence establishes several exacerbating circumstances; most notably, Kurzejeski's blatant violation of Laine's zone of privacy within her home. Kurzejeski had the opportunity to leave before he attacked Laine. In fact, Laine asked him to leave when he entered her home. He continuously prevented Laine from using the telephone and strangled her to unconsciousness. Despite his belief that he had gravely injured Laine, he failed to contact the authorities, and instead drank beer for the rest of the evening. Although Kurzejeski claimed to have been drinking before the attack, we are directed to no evidence to show that he was so incapacitated as to not know what he was doing. We conclude, therefore, that the trial court did not abuse its discretion in making an upward durational departure in sentencing.

  Affirmed.

[1] "With intent to" or "with intent that" means the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result. Minn. Stat. § 609.02, subd. 9(4).