State of Minnesota, Respondent, vs. Lorenzo NMN Murrell, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

State of Minnesota,

Respondent,

vs.

Fred Harrison Smith,

Appellant.

Filed June 27, 2000

Ramsey County District Court

File No. K7-99-893

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

            Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

HARTEN, Judge

Appellant challenges his conviction of fifth-degree assault, arguing that the district court abused its discretion by admitting evidence of his prior assaults on the victim and by upwardly departing from the presumptive sentence.  Because we see no abuse of discretion in the admission of evidence or the upward departure, we affirm. 

FACTS

            During the past six years, appellant Fred H. Smith and his victim have had a romantic relationship and have occasionally lived together.  During 1995 and 1996, appellant was convicted three times of physically assaulting the victim.  Then on March 25, 1999, appellant hit the victim's head and ears with his fist, threatened to kill her, and choked her.  When she screamed, he smothered her with a pillow until she was unconscious.  The state charged appellant with felony fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 4(a) (1998). 

At trial, the state introduced evidence of appellant's prior convictions.  A jury found appellant guilty.  The district court sentenced him to 60 months' imprisonment, an upward departure from the presumptive sentence of 33 months.  In support of the upward departure, the court found that (1) appellant was a career offender pursuant to Minn. Stat. § 609.1095, subd. 4; (2) appellant showed no remorse, took no responsibility, and continued to blame the victim for his actions; and (3) appellant had treated the victim with particular cruelty by striking her repeatedly and smothering her to the point where she lost consciousness.  Appellant challenges his conviction and sentence.

D E C I S I O N

1.         Relationship Evidence

            Rulings on evidentiary matters rest within the sound discretion of the district court and will not be reversed absent a prejudicial abuse of that discretion.  State v. Bauer, 598 N.W.2d 352, 362 (Minn. 1999).  Appellant argues that admitting evidence of his three prior assaults of this victim was an abuse of discretion.

Consistent with Rule 404(b), it is within the trial court's discretion to admit evidence of a defendant's prior acts for the purpose of illuminating the relationship of [the] defendant and [the victim] and placing the incident with which [the] defendant was charged in proper context.  Character evidence which tends to show the strained relationship between the accused and the victim is relevant to establishing motive and intent and is therefore admissible.  Prior to admitting such evidence, the trial court must determine that there is clear and convincing evidence that the defendant committed the prior bad act and that the probative value of the evidence outweighs any potential for unfair prejudice.

Id. at 364 (citations and quotations omitted). 

Here, appellant contends that the admission of his three prior convictions for physically assaulting the victim was overly prejudicial.  We disagree.  The probative value of evidence of appellant's prior convictions outweighed any potential for unfair prejudice because it (1) assisted the jury in assessing appellant's intent and motivation, (2) served to illuminate the long history of abuse (i.e. "strained relationship") between appellant and the victim, and (3) placed the crime for which appellant was charged into the proper context.  Accordingly, the district court acted within its discretion in admitting the evidence.

2.         Sentencing

The decision to depart from sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion.  See State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  The district court needs only one valid basis to support an upward departure from sentencing guidelines.  See State v. Jeno, 352 N.W.2d 82, 85 (Minn. App. 1984).  Here, the district court listed three. 

Appellant had five previous felony convictions, two of which were physical assaults against women.  Additionally, he stipulated to two prior gross misdemeanor assaults against this victim.  Appellant concedes that he "may technically meet the criteria for sentencing as a career offender" pursuant to Minn. Stat. § 609.1095, subd. 4 (1998), but argues that his sentence is "unreasonable, inappropriate, excessive, and unjustifiably disparate."  Minn. Stat. § 609.1095, subd. 4, provides that

the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.

Appellant argues that the district court unfairly "double counted" his conviction, using it both to enhance his conduct to a felony and to satisfy the requirements of the career offender statute.  He relies on the language found in Minn. Sent. Guidelines cmt. II.B.601:

[I]n the interest of fairness, a prior offense that elevated the misdemeanor or gross misdemeanor behavior to a felony should not also be used in criminal history points other than custody status.  Only one prior offense should be excluded from the criminal history score calculation, unless more than one prior was required for the offense to be elevated to a felony. 

Appellant would have us read similar language into section 609.1095, subd. 4.  But we are prohibited from adding words to a statute and cannot supply what the legislature either purposely omitted or inadvertently overlooked.  See Ullom v. Independent Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn. App. 1994).

            Additionally, the record independently supports the district court's upward departure.  See Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (reviewing court must examine record to determine whether it supports district court's stated reasons for departure).  The district court noted that appellant showed no remorse, took no responsibility, and continued to blame the victim for his actions.  Moreover, appellant had treated the victim with particular cruelty by striking her repeatedly and by smothering her to the point where she lost consciousness.  These are sufficient reasons to support an upward departure.  See State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998) (holding lack of remorse and particular cruelty are sufficient factors to support upward departure). 

            Affirmed.