Opinion
No. C1-01-832.
Filed February 19, 2002.
Appeal from the District Court, McLeod County, File No. K800207.
Mike Hatch, Attorney General, and
Michael K. Junge, McLeod County Attorney, Mark A. Metz, Assistant County Attorney, (for respondent)
John Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Leon Walter Hettver challenges the sufficiency of the evidence to support his conviction for second-degree assault under Minn. Stat. § 609.222, subd. 1 (2000), and the district court's refusal to depart dispositionally at sentencing. Because we conclude that the evidence was sufficient to support appellant's conviction and that the district court did not abuse its discretion in sentencing, we affirm.
DECISION 1. Sufficiency of the Evidence
Appellant claims that his conviction should be reversed because the evidence does not show that he intentionally shot a hat off of Larry Thompson's head and because the inconsistent evidence was present regarding the gun used. Appellant notes that both he and Thompson, who was his friend, were very drunk at the time of the shooting. Appellant also points to minor inconsistencies in the testimony of Thompson and Thompson's girlfriend, Tammy Girards, who was also present at the time of the shooting.
While there were some inconsistencies in the testimony of Thompson and Girards, including whether the gun used was a rifle or shotgun, their statements regarding the essential elements of the offense were consistent. Both testified that appellant fired a long-barreled gun at Thompson's hat and that he was either angry at the time of the shooting or that he became enraged just prior to the shooting. Appellant had both types of guns at his farm, where the shooting took place. It is the jury's function to assess witness credibility and resolve conflicting testimony. State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984); see State v. Ring, 554 N.W.2d 758, 760 (Minn.App. 1996) (weight and credibility of witnesses' testimony is for fact finder), review denied (Minn. Jan. 21, 1997). On review, we must assume the jury believed the evidence supporting the conviction and disbelieved contradictory evidence favoring the defendant. See Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). After a complete review of the record, we conclude that the slight inconsistencies in the testimony do not require reversal because the testimony as a whole was consistent and supports appellant's conviction for second-degree assault. See State v. Spaeth, 552 N.W.2d 187, 192 (Minn. 1996) (in sufficiency of evidence case, appellate court must determine whether evidence, viewed in light most favorable to the verdict, is sufficient to permit jury to reach guilty verdict); State v. Denison, 607 N.W.2d 796, 799 (Minn.App. 2000), review denied (Minn. June 13, 2000).
2. Sentencing
Appellant also claims that the district court abused its discretion in sentencing him to three years, as mandated by law when an assault is committed with a gun. See Minn. Stat. § 609.11, subd. 5(a) (2000). When a court contemplates enhancing a sentence under section 609.11, it may decline to impose the statutory minimum sentence if, on its own motion or on the prosecutor's motion, it finds that "substantial and compelling" circumstances exist. Minn. Stat. § 609.11, subd. 8 (2000); accord Minn. Sent. Guidelines II.D. (allowing sentencing departure for substantial and compelling circumstances). When the district court sentences a defendant, an appellate court must uphold the sentence unless it constitutes an abuse of discretion. State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).
Here, the court found no substantial and compelling circumstances to support a dispositional departure from the mandatory minimum sentence. Typically, a defendant's voluntary use of alcohol is not a mitigating factor so as to show a lack of capacity for judgment at the time the offense was committed. Minn. Sent. Guidelines II.D.2.a.(3). Appellant also argues that he is amenable to treatment, and it would be more appropriate for the court to sentence him to probation with mandatory treatment for alcohol abuse. Because the district court had no duty to stray from the statutorily required sentence without substantial and compelling circumstances and because the record does not demonstrate the existence of any substantial and compelling circumstances that would favor a dispositional departure, we conclude that the district court did not abuse its discretion in sentencing appellant.