Opinion
No. A06-1458.
Filed September 18, 2007.
Appeal from Redwood County District Court, File No. CR-06-87.
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, MN 55101-2134; and.
Thomas J. Evenson, Jon A. Hanson, Hanson Lulic Krall, LLC, Minneapolis, MN 55402 (for respondent).
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, Minneapolis, MN 55414 (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant was convicted by a jury of felony fifth-degree assault under Minn. Stat. § 609.224, subds. 1(2), 4(b) (2004), and the district court imposed a 60-month executed sentence. Appellant challenges his conviction and sentence, claiming that the state should have charged him with the more specific offense of misdemeanor domestic assault aimed at "household members," Minn. Stat. § 609.2242, subd. 1(2) (2004), rather than the general offense of assault. He further argues that the trial court abused its discretion by imposing a sentence under the dangerous-and-career-offender statute. Because (1) the domestic assault and general assault statutes are not in conflict and appellant could have been charged under either statute; (2) the court did not abuse its discretion in sentencing appellant to 60 months in prison; and (3) appellant has failed to state any valid legal claims in his pro se brief, we affirm.
DECISION
1. Appellant first claims that he should have been charged with misdemeanor domestic assault rather than felony assault. A person commits fifth-degree assault if he "(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another." Minn. Stat. § 609.224, subd. 1 (2004). The assault statute contains an enhancement provision that allows a misdemeanor offense to be charged as a felony if "[w]hoever violates the provisions of subdivision 1 [does so] within three years of the first of any combination of two or more previous qualified domestic violence-related offense convictions[.]" Minn. Stat. § 609.224, subd. 4(b) (2004).
The domestic assault statute provides that a person who does the following "against a family or household member" is guilty of a misdemeanor: "(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another." Minn. Stat. § 609.2242, subd. 1 (2004). This statute also provides for enhancement of a misdemeanor to a felony charge for a repeat offense, but only when the current offense is against the same victim as two or more prior offenses. Minn. Stat. § 609.2242, subd. 4 (2004). Appellant met the criteria for felony enhancement under the fifth-degree assault statute but not under the domestic assault statute, because his victims for the prior offenses were not the same.
Appellant argues that he could be charged only under the domestic assault statute because it was more specific than the general assault statute. He relies on State v. Kalvig, 296 Minn. 395, 209 N.W.2d 678 (1973) and its progeny. See State v. Craven, 628 N.W.2d 632 (Minn.App. 2001), review denied (Minn. Aug. 15, 2001); State v. Lewandowski, 443 N.W.2d 551 (Minn.App. 1989). In Kalvig, the supreme court ruled that where a specific welfare fraud statute covered a mother's conduct, she could be charged only with welfare fraud, and the prosecutor did not have discretion to charge her with theft for the same conduct under the general theft statute, absent a legislative indication that the general theft statute should control. Kalvig, 296 Minn. at 401, 209 N.W.2d at 681; accord Craven, 628 N.W.2d at 636 (holding offense of fleeing causing death could not serve as predicate felony under felony-murder statute because fleeing causing death had same elements but was more specific than felony-murder statute); Lewandowski, 443 N.W.2d at 554 (holding person who failed to appear for incarceration could not be charged with escape because he was not in constructive custody and could be charged only with lesser included offense of failing to appear). As rationales for their holdings, these cases rely on the propositions that specific provisions of a statute prevail over general provisions of the same or another statute if the two are in irreconcilable conflict, Minn. Stat. § 645.26, subd. 1 (2004), and that penal statutes are to be construed against the state and in favor of the defendant. Lewandowski, 443 N.W.2d at 553-54.
In the majority of opinions issued by this state's appellate courts after release of Kalvig, however, courts have relied on "[t]he basic rule . . . that absent legislative intent to the contrary and absent discrimination against a particular class of defendants, the prosecutor may prosecute under any statute that the defendant's acts violate without regard to the penalty." State v. Chryst, 320 N.W.2d 721, 722-23 (Minn. 1982) (ruling felony theft statute and odometer tampering statute were not irreconcilable); accord State v. Love, 350 N.W.2d 359, 362 (Minn. 1984) (ruling defendant could be charged with both criminal sexual conduct and intrafamilial sexual abuse); State v. Evenson, 554 N.W.2d 409, 412 (Minn.App. 1996) (ruling defendant's entry into marital home that constituted a misdemeanor violation of an order for protection did not preclude prosecution for felony burglary), review denied (Minn. Oct. 29, 1996); State v. Danowit, 497 N.W.2d 636, 640-41 (Minn.App. 1993) (ruling that defendant could be prosecuted for both first-degree assault and malicious punishment of child causing great bodily harm), review denied (Minn. May 11, 1993); State v. Williams, 396 N.W.2d 840, 847 (Minn.App. 1986) (ruling that offenses of false representation and forgery were not irreconcilable and defendant could be prosecuted under either statute). In Williams, the court noted the numerous times that Minnesota courts have distinguished Kalvig and stated that "we can only conclude that Kalvig is to be confined to its facts." Williams, 396 N.W.2d at 845.
Here, the basic elements of both offenses are set forth in identical statutory language, and appellant's conduct could be prosecuted under either statute. When considering the charging enhancement provisions, however, appellant's conduct of committing the current similar offense against different victims within a certain period allowed enhancement of the charge only under the assault statute. For this reason, the statutes do not cover the same conduct and are not in conflict. Further, there is no indication in either statute of legislative intent that the general assault statute should prevail. Applying the rule set forth in Cryst, we conclude that the prosecutor could properly charge appellant under the general assault statute rather than the domestic assault statute.
2. Appellant next argues that even if this court affirms his conviction, it should vacate his sentence and remand for resentencing because the court imposed a sentence that, while authorized by law, was excessive. The presumptive guidelines sentence was 33 months, but the court imposed a 60-month sentence. Appellant's criminal history score was seven. This court reviews a district court's departure from the sentencing guidelines for an abuse of discretion. State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003). This standard of review applies for sentencing departures based on the dangerous-and-career-offender statutes. State v. Munger, 597 N.W.2d 570, 574 (Minn.App. 1999), review denied (Minn. Aug. 25, 1999).
The state sought a durational departure under the dangerous-and-career-offender statutes based on appellant's commission of a third violent felony and his commission of a felony after being convicted of five other felonies. See Minn. Stat. § 609.1095, subds. 2, 4 (2004). The dangerous-offender statute allows an increased sentence, up to the statutory maximum, if the court determines that "the offender has two or more prior convictions for violent crimes" and "the offender is a danger to public safety," which may be based on the "high frequency rate of criminal activity" or "long involvement in criminal activity." Id., subd. 2. Minn. Stat. § 609.1095, subd. 4, the career-offender statute, permits an increased sentence, up to the statutory maximum, if the "present offense is a felony that was committed as part of a pattern of criminal conduct."
Appellant's conduct, and the record evidence, including evidence regarding appellant's criminal history, his most recent felony convictions, and testimony from his probation officer regarding appellant's danger to public safety, support the jury's findings and the court's sentencing decision. Appellant's prior felony convictions include first-degree burglary (1992), third-degree criminal sexual conduct (1997), fourth-degree assault (1998), failure to register as a sex offender (2002, 2003), and second-degree assault and criminal damage to property (2005). The court's sentencing departure is supportable under either of the applicable statutory subdivisions covering dangerous and career offenders, and we observe no abuse of discretion in the court's sentencing determination.
3. Appellant filed a pro se brief that fails to state a clear basis for appeal on any issue or provide any legal support for his claims. As such, appellant has waived any issues that he may have individually raised to this court. See State v. Butcher, 563 N.W.2d 776, 780 (Minn.App. 1997) (holding that when defendant asserts trial error but fails to make or develop a legal argument in the appellate brief, the issue is deemed waived), review denied (Minn. Aug. 5, 1997).
Affirmed.