Opinion
No. C6-01-552.
Filed January 29, 2002.
Appeal from the District Court, Todd County, File No. K900414.
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, and
Gaylord Saetre, Todd County Attorney, (for respondent)
Bradford Colbert, (for appellant)
Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Dennis Frank Kurowski appeals from his conviction and sentence for kidnapping with intent to terrorize under Minn. Stat. § 609.25, subd. 1(3) (2000). Because the complaint included factual allegations involving appellant's use of a firearm, appellant received adequate notice that, if convicted of one of the two kidnapping charges or the second-degree assault charge, he could be subject to the mandatory minimum sentence under Minn. Stat. § 609.11 (2000). We therefore affirm.
DECISION I.
Following an altercation involving his estranged wife, appellant was charged with multiple counts, including kidnapping with intent to terrorize, kidnapping with intent to commit second-degree assault, and second-degree assault. At trial, the victim testified that at one point during the incident, appellant forced her into a vehicle, showed her a loaded gun, and placed the gun on the dashboard while he was driving. She further testified that appellant claimed he was going to kill her and that she considered his actions in taking the gun out from under his seat as a threat that he would use it. In the execution of a search warrant following appellant's arrest, a loaded gun was found under the driver's seat of his vehicle.
Appellant was also charged with making terroristic threats, intentional restraint, interfering with a 911 call, possession of a pistol in a motor vehicle, and misdemeanor domestic assault.
During opening and closing arguments, appellant's attorney argued that because appellant never pointed the gun at the victim or used it to assault her, the jury should acquit him on the second-degree assault charges. Appellant's attorney conceded, however, that appellant was guilty of the remaining charges, which included kidnapping with intent to terrorize. The jury acquitted appellant of the charges involving second-degree assault, but convicted him of the remaining charges.
Prior to sentencing, the state argued for application of the mandatory minimum sentence under Minn. Stat. § 609.11. Minn. Stat. § 609.11, subd. 5(a) provides for a minimum three-year sentence of imprisonment for certain crimes in which the defendant "at the time of the offense, had in possession or used, whether by brandishing, displaying, threatening with, or otherwise employing, a firearm[.]" The offenses to which this minimum sentence applies include kidnapping and second-degree assault. Id., subd. 9. At sentencing, the court found by a preponderance of the evidence that appellant possessed a firearm during the commission of the kidnapping offense and that sentencing under section 609.11 was therefore appropriate.
Appellant argues that his constitutional rights were violated because the complaint did not refer to the mandatory minimum sentence under Minn. Stat. § 609.11. See Minn. Const. art. I, § 6 (criminal defendant entitled "to be informed of the nature and cause of the accusation"); U.S. Const. amend. VI (same). While we agree that it would be a better practice to refer to section 609.11 in a complaint, the lack of such a reference does not render a complaint constitutionally infirm where, as here, the complaint contains detailed factual allegations that the defendant used or possessed a firearm during commission of crimes which are specifically enumerated in section 609.11.
Prior to 1978, Minn. Stat. 609.11, subd. 2 (1976) provided that the mandatory minimum sentence "shall apply to information and indictments charging any offense enumerated therein which allege possession of the firearm or use of the weapon * * * and cite this section." (Emphasis added.) The language of that subdivision, however, was repealed by the legislature in 1978. See 1978 Minn. Laws ch. 723, art. II, § 5. The current version of the statute does not require that the complaint cite section 609.11; appellant's argument here is based solely on the constitution.
In particular, the probable cause section of the complaint here states that the victim claimed that (1) "she had been held at gunpoint for several hours by her suicidal husband"; (2) appellant had "pulled a black handgun * * * out from under the driver seat and showed it to [the victim] and told her it was loaded"; (3) "[h]e was holding the gun but did not point it directly at her"; and (4) she feared for her life during the incident. These facts, along with the specific counts with which appellant was charged, were sufficient to notify appellant of the nature and cause of the accusations against him.
Appellant further argues that, at the very least, he was entitled to notice about the applicability of section 609.11 before trial so that he could have considered this factor in planning his trial strategy. He insists that he sought acquittal on the charges of second-degree assault and kidnapping with intent to commit a second-degree assault because he believed that those were the only charges subject to section 609.11. Section 609.11 is a sentencing enhancement provision and specifically applies to many offenses that do not include possession or use of a firearm as an element. See State v. Montjoy, 366 N.W.2d 103, 110 (Minn. 1985) ("defendant does not have to be convicted of an offense that has use of a firearm or dangerous weapon as an element in order for section 609.11 to apply"); see also State v. Johnson, 551 N.W.2d 244, 247 (Minn.App. 1996), review denied (Minn. Sept. 20, 1996).
We therefore conclude that appellant received adequate notice of the applicability of section 609.11 to this case.
II.
Appellant argues that the district court violated his due process rights by finding that he possessed a firearm, after the jury acquitted him on the two firearm-related offenses. The jury's acquittal of appellant on the second-degree assault charges merely suggests that the jury did not believe that the state successfully proved, beyond a reasonable doubt, that appellant assaulted the victim with a firearm. The acquittal does not preclude a finding by the court that appellant used or possessed a firearm during the commission of the other offenses, including kidnapping with intent to terrorize. Because section 609.11 requires either possession or use, its application here is not contrary to the jury's verdict. See State v. Hannam, 601 N.W.2d 454, 456 (Minn.App. 1999) (affirming district court's enhancement of sentence under section 609.11 based on its finding, by preponderance of evidence, that defendant possessed firearm while committing burglary of an occupied dwelling, even though jury acquitted defendant on charge of burglary while possessing or using dangerous weapon), review denied (Minn. Oct. 19, 1999); see also Salcido-Perez v. State, 615 N.W.2d 846, 848 (Minn.App. 2000), review denied (Minn. Sept. 13, 2000).
Appellant further implies that enhancement of his sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). Apprendi is only implicated when a defendant is sentenced to a prison term in excess of a statutory maximum. Because the statutory maximum for kidnapping is 20 years under Minn. Stat. § 609.25, subd. 2(1) (2000), the district court's imposition of a five-year sentence does not implicate Apprendi. See also State v. McCoy, 631 N.W.2d 446, 451 (Minn.App. 2001) (holding that Apprendi only applies "to situations where a court sentences a defendant to a term that exceeds the statutory maximum").
III.
Appellant challenges the district court's decision to depart from the 36-month mandatory minimum sentence and impose a 60-month sentence. The court based its departure on appellant's invasion of the victim's zone of privacy, treatment of the victim with particular cruelty, and lack of remorse. In particular, the court noted that the victim had a "right to be safe in [her] home * * * [a]nd you went in there and invaded that zone of privacy." The court further indicated that appellant inflicted gratuitous injury on the victim and treated her with particular cruelty, as exhibited by the bruising on her body, the hole in the sheetrock caused by her head being slammed into the wall, reading her obituary, threatening to kill her, and extending the kidnapping over a period of several hours. The court finally noted that appellant appeared not to fully appreciate the seriousness of his actions and showed a lack of remorse. These aggravating factors support the two-thirds durational departure imposed here. See, e.g., Perkins v. State, 559 N.W.2d 678, 691 (Minn. 1997) (victim treated with particular cruelty and defendant threatened to kill victim); State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (zone of privacy); State v. McGee, 347 N.W.2d 802, 806 n. 1 (Minn. 1984) (lack of remorse); State v. Woelfel, 621 N.W.2d 767, 775 (Minn.App. 2001) (lack of remorse), review denied (Minn. Mar. 27, 2001); State v. Pierson, 368 N.W.2d 427, 435-36 (Minn.App. 1985) (zone of privacy).
IV.
Finally, appellant has submitted a pro se supplemental brief in which he challenges the bail set as excessive, the district court judge's recusal before sentencing as unduly prejudicial, and the information contained in the presentence investigation report as inaccurate and false. We have fully considered these and other arguments raised by appellant in his pro se brief and conclude that they provide no legal or factual basis for relief.
We therefore affirm appellant's conviction and sentence.
Affirmed.