State of Minnesota, Respondent, vs. Michael Lee Littlewolf, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-2209

 

State of Minnesota,
Respondent,
 
vs.
 
Michael Lee Littlewolf,
Appellant.

 

Filed September 23, 2003

Affirmed

Minge, Judge

 

Beltrami County District Court

File No. KX02254

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Kristen M. Olsen, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Timothy R. Faver, Beltrami County Attorney, Court Annex, Suite 40, 619 Beltrami Avenue NW, Bemidji, MN 56601-3071 (for respondent)

 

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

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, 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 conviction and sentence for assault, arguing that the evidence is not sufficient to support the conviction, the prosecutor committed prosecutorial misconduct, and the district court improperly departed from the sentencing guidelines.  We affirm. 

FACTS

            Appellant Michael Lee Littlewolf was convicted for assaulting his girlfriend, Lisa Johnson.  The assault took place in Johnson's home on February 13, 2002, after appellant and Johnson had been drinking.  Johnson's children were in the home at the time of the assault.

Nancy Fitzloff, Johnson's niece, witnessed most of the assault.  Fitzloff testified that she saw appellant grab Johnson by her head and throw her to the floor.  Johnson hit her head on the refrigerator, then lay on the floor in a ball, placing her hands to her head.  At that point of the assault, Fitzloff gathered Johnson's children to get them out of the home.  Fitzloff testified that as she was doing this, appellant grabbed one of the children, K.J., pinned her on the couch, and proceeded to hit her.  Fitzloff was able to get hold of K.J. and proceed through the front door with the children.  As Fitzloff and the children were leaving the home, appellant slammed the door on them, which resulted in one of the children, M.J., being hit by the door.  There were marks on M.J.'s forehead from where the door hit. 

Once outside the home, Fitzloff called 911.  Fitzloff and the children then waited for the police outside the home.  They could hear screaming, yelling, dragging, door slamming, and things falling over inside the home.  The police arrived, arranged for Johnson to be taken to the emergency room via ambulance, and began investigating. 

The jury convicted appellant of first-degree assault and of the lesser-included offenses of second-degree assault and third-degree assault.  The district court imposed the statutory maximum sentence for first-degree assault, 240 months, which was an upward durational sentencing departure.

D E C I S I O N

I.

We first address whether there was sufficient evidence to convict appellant.  In considering a claim of insufficient 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, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court 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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Appellant was convicted of first-degree assault in violation of Minn. Stat.              § 609.221 (2002).  A first-degree assault conviction requires someone to assault another and inflict great bodily harm.  Id. subd. 1.  The phrase "great bodily harm" is defined in the statute as "bodily injury [1] which creates a high probability of death, or [2] which causes serious permanent disfigurement, or [3] which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or [4] other serious bodily harm."  Minn. Stat. § 609.02, subd. 8 (2002).  The statute requires the state to show only one of the four forms of great bodily harm.  Id.

            In this case, the state argued to the jury that Johnson suffered either serious permanent disfigurement or other serious bodily harm.  To support its theory that the scarring on Johnson's face constitutes "serious permanent disfigurement," the state introduced testimony from the emergency room doctor and nurse who treated Johnson on the night of the assault.  Appellant contends that the doctor and nurse have only limited knowledge of Johnson's scarring and that their testimony is therefore not sufficient to support appellant's conviction.  But this argument goes to the weight to be given the doctor's and nurse's testimony.  It is well settled that judging the credibility of witnesses and the weight given to their testimony rests within the province of the finder of fact.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).  Accordingly, we must assume that the jury believed the testimony of the doctor and nurse, and that the jury believed that the doctor and nurse had adequate knowledge of Johnson's scarring to testify as they did.   

            They testified that Johnson's injuries included three facial lacerations: one just under an inch in length and located along the inner portion of her right eyebrow; the second located across the bridge of her nose; and the third extending one and one-half inches in length on Johnson's left cheek.  The doctor testified that he used suturing procedures utilized by plastic surgeons in an attempt to minimize the appearance of scarring on Johnson's face but that permanent scarring would nonetheless occur.  This type of scarring is consistent with scarring we have previously held to constitute serious permanent disfigurement.  Compare State v. Gerald, 486 N.W.2d 799, 802 (Minn. App. 1992) (finding that where scars were permanent but "relatively small and . . . not particularly noticeable," the scars were not "extensive [or] pronounced" enough to constitute serious permanent disfigurement) and State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995) (finding that two scars on the chest and neck of the victim were larger and more noticeable than in Gerald and therefore supported a finding of serious permanent disfigurement), review denied (Minn. Sept. 20, 1995).

            Because there is sufficient evidence in the record to support a finding that Johnson suffered serious permanent disfigurement, we need not address appellant's contention that there is not sufficient evidence to support a finding of "other serious bodily harm."

II.

Appellant argues that the prosecutor committed prosecutorial misconduct during the state's opening statement and closing argument.  Even if established, prosecutorial misconduct does not in and of itself require a new trial. State v. Scruggs, 421 N.W.2d 707, 715-16 (Minn. 1988).  This court reviews claims of prosecutorial misconduct and will reverse only if the misconduct, when considered in light of the whole trial, appears to be inexcusable and so serious and prejudicial that it impaired the defendant's right to a fair trial.  State v. Steward, 645 N.W.2d 115 (Minn. 2002); State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). When assessing prosecutorial misconduct, the closing argument will be considered as a whole.  Johnson, 616 N.W.2d at 728.  There are two distinct standards. "For serious . . . misconduct, the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error."  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  For less serious misconduct, the standard is "whether the misconduct likely played a substantial part in influencing the jury to convict."  Id. 

When a defendant fails to object to a prosecutor's statements or to seek specific cautionary instructions, the defendant generally forfeits the right to have the issue considered on appeal.  State v. Darris, 648 N.W.2d 232, 241 (Minn. 2002).  "[T]he reviewing court may reverse despite the defendant's failure to preserve the issue if the court deems the error sufficient to do so."  Id. (citing State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997); State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984); State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980)). 

Appellant argues that the prosecutor made several misstatements of fact and evidence during the opening statement.  Statements about evidence made during an opening statement are improper where the statements are not based on a good-faith belief in their admissibility.  State v. Smallwood, 594 N.W.2d 144, 150 (Minn. 1999).  When corroborating evidence exists to support a prosecutor's assertion in the opening statement, no prosecutorial misconduct exists.  State v. Vance, 392 N.W.2d 679, 684 (Minn. App. 1986), review denied (Minn. Oct. 29, 1986). 

We have examined the record and the alleged misstatements in the prosecutor's opening statement.  We conclude that none of the statements, taken independently or as a whole, prejudiced appellant.  Some of the statements are supported by evidence presented at trial.  The remaining statements, though arguably untrue, were based on good-faith beliefs that facts to support those statements would be admitted into evidence.  Mindful of the defendant's failure to preserve this issue, we decline to further consider whether the opening statement amounted to misconduct warranting a reversal.    

            Appellant also challenges a statement made during the prosecutor's closing argument.  "When assessing prosecutorial misconduct, the closing argument will be considered as a whole."  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citation omitted).  The court considers the portion of the closing argument that is found to be misconduct in relation to the total length of the closing argument.  See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (holding no prosecutorial misconduct in a closing statement where misconduct constituted only 4 pages of the transcript when the closing argument was 45 pages); State v. Coleman, 560 N.W.2d 717, 722 (Minn. App. 1997) (holding no misconduct where the comments at issue spanned only 2 of 60 pages). Technically improper closing arguments do not amount to prosecutorial misconduct when

the improprieties were not dwelled on at any length, the prosecutor himself stressed that the jury's verdict was to be based only on the evidence, that the trial judge, in his discretion, did not deem the argument so improper as to require curative instructions or sua sponte intervention during the argument.

 

State v. Stufflebean, 329 N.W.2d 314, 318-19 (Minn. 1983).  Closing arguments should focus on the evidence and any reasonable inferences that could be drawn from the evidence.  State v. Yang, 627 N.W.2d 666, 679 (Minn. App. 2001), review denied (Minn. July 24, 2001).  Additionally, "a prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury."  Id. at 679-80 (quotations and citations omitted).  The Minnesota Supreme Court has noted that in closing arguments "counsel has the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom."  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).

            Appellant claims the state inflamed the passions and prejudices of the jury during closing argument when it noted that the incident in question occurred on the evening before Valentine's Day, recounted a story about the origin of Valentine's Day, and told the jury:  "You see, every morning [Johnson] wakes up, she remembers Valentine's Day.  And it's not just the color red or pink anymore.  It is blood red, ladies and gentlemen, for her."

This statement falls into the category of inflaming and prejudicing the jury.  Rather than focusing on the legitimate arguments based on the evidence, analyzing and explaining the evidence, or presenting proper inferences to be drawn from the evidence, the prosecutor attempted to inflame the jury.  But the statement does not require a reversal of appellant's conviction.  The Valentine's Day story spanned only one-half of a page of the transcript; the prosecutor's closing argument spans almost 20 pages.  Although a shorter length does not automatically excuse improper remarks, the shorter length demonstrates that the state did not dwell on the Valentine's Day story nor use it as a theme for the closing argument.  The rest of the prosecutor's closing argument remained within the permissible bounds of a closing argument.  While the isolated Valentine's Day story may have been improper, we conclude that, viewing the argument as a whole, the prosecutor did not commit prosecutorial misconduct in the closing argument.

III.

Next we address appellant's challenge to the district court's decision to impose an upward durational sentencing departure.  The district court made the upward departure based on its findings that appellant is a career offender, as defined in Minn. Stat.              § 609.1095, subd 4 (2002), and a dangerous offender, as defined in Minn. Stat.                § 609.1095, subd. 2 (2002). 

The career offender statute requires that the defendant have five or more "prior convictions."  Minn. Stat. § 609.1095, subd. 4, subd. 1(c) (2002).  A prior conviction is one in which the judgment occurs before the commission of the next crime.  Minn. Stat.  § 609.1095, subd. 1(c).  Here, one of the convictions the district court counted toward appellant's five or more convictions did not occur before the commission of appellant's next felony.  Therefore, that conviction does not count toward appellant's five or more prior convictions, and appellant only has four statutorily defined prior convictions.  Accordingly, we reverse the district court's finding that appellant is a career offender. 

But the dangerous offender statute can serve as an independent basis for the upward departure, so we must also address the district court's determination that appellant is a dangerous offender.  A reviewing court will not overturn a district court's determination that a defendant is a dangerous offender if that finding is supported by the record.  State v. Branson, 529 N.W.2d 1, 3-4 (Minn. App. 1995), review denied (Minn. April 18, 1995). 

The dangerous offender statute allows the court to depart upwards to the statutory maximum sentence when the offender is 18 years of age, has been convicted of a violent felony crime, has two or more prior convictions for violent crimes and:

(2)       the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding, which may include:

(i)        the offender's past criminal behavior, such as the offender's high frequency rate of criminal activity or juvenile adjudications, or long involvement in criminal activity including juvenile adjudications; or

(ii)       the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.

 

Minn. Stat. § 609.1095, subd. 2 (2002). 

Thus, when finding a defendant a danger to public safety, the sentencing court must find either that the defendant has a sufficient past criminal record or that there is at least one aggravating factor present.  Id.  Appellant concedes that he fulfills all the elements of the statute, with the exception of the element that requires him to be a danger to public safety.     

Appellant first challenges the past-criminal-behavior prong of the dangerous offender statute by claiming that it takes the defendant's criminal history into consideration twice: once for the actual criminal history score under the sentencing guidelines, and again under Minn. Stat. § 609.1095 subd. 2(2)(i) (2002).  Under the guidelines, the criminal history score must be calculated in order to determine the presumptive sentence.  Minn. Sent. Guidelines II.  On the other hand, the dangerous offender statute allows the court to qualitatively assess one's criminal history in possible support of an upward departure.  The "past criminal behavior" is not considered mechanically, but subjectively, based on factors such as the frequency rate of past crimes, as part of a qualitative judgment that also considers other factors.  See generally Minn. Sent. Guidelines II.D.2.b(8) (allowing a determination of a convicted felon as a dangerous offender to act as an aggravating factor).  Although the dangerous offender statute serves a second function, it does not "double-dip" because it extends the evaluation of one's criminal history score beyond the limited scope of the sentencing guidelines.  But see Neal v. State, 658 N.W.2d 536, 546 (Minn. 2003) (cautioning courts that under the dangerous offender statute, a defendant's criminal history may become artificially exaggerated).

Second, appellant argues that the record of his past criminal behavior does not support the determination that he is a danger to public safety.  He argues that the frequency rate of his involvement in criminal activity has been declining since he committed his last felony in 1995, and he contends that the required lengthy involvement in criminal activity is not present because there is a downward graduation in the types and severity of crimes he has committed. 

Courts have found a high frequency rate of criminal activity when a defendant has as little as three and as many as twelve previous convictions.  State v. Kimmons, 502 N.W.2d 391, 396 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993) (holding twelve prior crimes, including both felonies and misdemeanors, constitute a high frequency rate of criminal activity); Branson, 529 N.W.2d at 4 (holding three prior crimes constituted a high frequency of criminal activity).  Moreover, the Kimmons court found a long involvement in criminal activity with a criminal history spanning sixteen years.  Kimmons, 502 N.W.2d at 396; see also Branson, 529 N.W.2d at 4 (finding eighteen years of criminal history sufficient for dangerous person statute).

Appellant has been convicted of 20 crimes over the course of 16 years.  Since appellant's last felony conviction in 1995, he has been convicted of eight misdemeanors or gross-misdemeanors.  Neither the dangerous offender statute nor the case law interpreting the statute distinguish between felony convictions and misdemeanor convictions for purposes of evaluating past criminal behavior.  Minn. Stat. § 609.1095, subd. 2(2)(i); Kimmons, 502 N.W.2d at 396.  The record supports the district court's finding that appellant has a long history and high frequency of involvement in criminal activity.  Accordingly, the district court did not abuse its discretion by imposing an upward durational sentencing departure based on the determination that appellant is a dangerous offender. 

We note that even if the record did not support a finding that appellant's past criminal behavior makes him a dangerous offender, there is at least one aggravating factor that would support a finding that he is a danger to public safety and, therefore, a dangerous offender. 

            The Minnesota Sentencing Guidelines provide some guidance as to what qualifies as aggravating factors.  Minn. Sent. Guidelines II.D.2.b.  Yet, the guidelines caution that the provided list of aggravating circumstances is not "exclusive or exhaustive."  Minn. Sent. Guidelines cmt. II.D.201.  The court in State v. Profit found that "committing the offense in front of the children was a particularly outrageous act and that while the children maybe were not technically victims of the crime, they were victims in another sense."  State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982).  Here, appellant does not challenge the court's findings that the assault took place in the victim's home and that the victim's children were present.  Fitzloff testified that at one point, she left the children, Johnson and appellant inside the trailer.  The children saw the beginning of the assault, to the point where their mother was thrown to the floor and hit her head.  This is an aggravating factor under the Minnesota Sentencing Guidelines.  Minn. Sent. Guidelines II.D.2.6.(1).  Accordingly, the presence of this aggravating factor supports the district court's determination that appellant is a dangerous person and the longer sentence.

            The length of the departure was proper.  Generally, when an upward departure in sentence length is justified, the sentence should not exceed double the presumptive sentence length.  State v. Anderson, 463 N.W.2d 551, 553 (Minn. App. 1990), review denied (Minn. Jan. 14, 1991).  As noted above, appellant's presumptive sentence was 158 months, and the district court imposed the statutory maximum sentence of 240 months, which was less than a double departure.

            Because there is sufficient evidence to support appellant's conviction, and because the prosecutor did not commit misconduct requiring a reversal, we affirm appellant's conviction.  Because appellant does not meet the definition of a career offender, the district court should not have sentenced him as a career offender.  But because there is record support for the district court's determination that appellant is a dangerous offender, and because the district court did not abuse its discretion by imposing the statutory maximum sentence, we affirm appellant's sentence.     

            Affirmed.