State v. Stay

923 N.W.2d 355

STATE of Minnesota, Respondent,

v.David Michael STAY, Appellant.

A18-0335

Court of Appeals of Minnesota.

Filed February 11, 2019

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and Joe Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

Ian S. Birrell, Marc E. Betinsky, Gaskins Bennett & Birrell LLP, Minneapolis, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Rodenberg, Judge; and Cochran, Judge.

RODENBERG, Judge

In this direct appeal from his conviction of and sentence for first-degree manslaughter, appellant David Stay argues that the district court reversibly erred when it instructed the jury that first-degree manslaughter does not require proof that death or great bodily harm be reasonably foreseeable if the underlying offense is a fifth-degree assault, and that it further erred by accepting inconsistent verdicts finding appellant guilty of fifth-degree assault and first-degree manslaughter but not guilty of first-degree assault. We affirm.

FACTS

On May 13, 2016, appellant spent most of the evening drinking, socializing, and playing various games at a restaurant and bar. D.T. was also at that bar and, by the time the bar closed at 1:00 a.m., D.T. had an alcohol concentration of at least 0.21.

Around 1:00 a.m., appellant was outside the bar. He yelled and became aggressive toward A.B., a friend of D.T. A.B. entered the bar to report appellant’s aggression to the bartenders. D.T. came out of the bar and began poking, pushing, and yelling at appellant. After several pushes and pokes by D.T., appellant punched D.T. once in the face.¹ D.T. fell to the ground in an unresponsive state with agonal breathing (a type of breathing when an individual is not receiving oxygen and is very close to death or needing help breathing). Appellant fled.

D.T. was transported by ambulance to a nearby emergency room and later air-lifted to another hospital. Despite medical efforts, D.T. died at 3:56 a.m. A neurologist reported that, in her expert opinion, D.T. died "due to a combination of blunt force craniocerebral trauma... potentiated by alcohol concussion syndrome." In ordinary language, D.T.’s brain was injured by blunt force trauma in such a manner, likely exacerbated by his elevated blood alcohol concentration, that it was unable to transmit the signals necessary for D.T.’s heart and lungs to function, and he died as a result.

After the assault but before D.T. died, police located appellant near his fishing cabin. Appellant initially admitted that he had punched D.T. in the face and that he "coulda made a better choice there’s no doubt about it." After D.T. died, appellant was interviewed a second time by a police detective, and appellant described having "retaliated" against D.T.’s pushing and that "it was an over like too hard of a punch for the situation."

Appellant was initially charged with first-degree assault, first-degree-manslaughter, and fifth-degree-assault, and the case was tried to a jury.² At trial, appellant emphasized that he did not intend to kill D.T. and that it was unforeseeable that D.T. would die from one punch.

Appellant requested that the district court instruct the jury that first-degree manslaughter requires that death or great bodily harm be reasonably foreseeable as a result of fifth-degree assault as a predicate offense. After hearing arguments concerning the elements of first-degree manslaughter with fifth-degree assault as a predicate offense, the district court declined to include foreseeability of death or great bodily harm as an element. In its instructions to the jury on the elements of first-degree manslaughter, the district court instructed the jury as follows:

Count 1, Manslaughter in the First Degree-While Committing Assault in the Fifth Degree-Defined. Under Minnesota law, whoever, in committing assault in the fifth degree, causes the death of another is guilty of manslaughter in the first degree.

The elements of manslaughter in the first degree are: First, the death of [D.T.] must be proven. Second, the [appellant] caused the death of [D.T.]

Third, the death of [D.T.] was caused by [appellant] committing an assault in the fifth degree.

....

It is not necessary for the State to prove any intent on the part of [appellant] to kill anyone. Fourth, [appellant’s] act took place on, or about May 13 through 14, 2016, in Mille Lacs County.³

The jury found appellant guilty of first-degree manslaughter and fifth-degree assault, but found him not guilty of first-degree assault. The district court sentenced appellant to 51 months in prison for first-degree manslaughter and did not sentence appellant for fifth-degree assault.

This appeal followed.

ISSUES

I. Did the district court err by not including the reasonable foreseeability of death or great bodily harm as an element of first-degree manslaughter in the jury instructions?

II. Did the district court err by accepting inconsistent verdicts, a not-guilty verdict on first-degree assault and guilty verdicts on fifth-degree assault and first-degree manslaughter?

ANALYSIS

I. The district court’s first-degree manslaughter jury instructions were not erroneous.

Minn. Stat. § 609.20(2) provides that a person commits first-degree manslaughter if that person

violates section 609.224 and causes the death of another or causes the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death of or great bodily harm to any person was reasonably foreseeable , and murder in the first or second degree was not committed thereby.

Minn. Stat. § 609.20(2) (emphasis added). Fifth-degree assault, ordinarily a misdemeanor,⁴ is committed whenever a person "(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.

The parties agree that section 609.20(2) identifies two ways that first-degree manslaughter may be committed. What we will call the "fifth-degree-assault clause" identifies one way, and what we will call the "misdemeanor-offense clause" identifies a second way to commit first-degree manslaughter. The issue before us concerns what the words "with such force and violence that death of or great bodily harm to any person was reasonably foreseeable" modify. We will call this the "reasonable-foreseeability modifier." The case comes down to this: Does the reasonable-foreseeability modifier apply to both the fifth-degree-assault clause and the misdemeanor-offense clause, or does it apply only to the latter?

Before instructing the jury, the district court wrestled with this question in discussions with counsel. The district court observed:

I think when I was originally looking at this and thought the reasonable foreseeability prong belonged in there, it was sort of in like what [defense trial counsel] is saying the history of my understanding of what manslaughter was. The problem is I don’t actually even think that the statute is ambiguous now that I’ve read it multiple times.

I think the statute is pretty straight forward, if it had meant that I was supposed to include, "reasonable foreseeability" there will be ... commas after the, and causes the death of another, "comma" or causes the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense, "comma" with such force or violence, and then we would know by the plain reading of the statute that the with force or violence in reasonable foreseeability applied to both. They ... do not have that punctuation in there.

The district court went on to explain that its interpretation that the reasonable-foreseeability modifier does not apply to the fifth-degree assault clause is consistent with the pattern jury instruction. Over appellant’s objection, the district court did not include the reasonable-foreseeability modifier when it instructed the jury.

Appellate courts review the interpretation of a statute de novo.

State v. Riggs , 865 N.W.2d 679, 682 (Minn. 2015). An appellate court must first determine whether a statute’s language is ambiguous. State v. Thonesavanh , 904 N.W.2d 432, 435 (Minn. 2017). "A statute is ambiguous when its language is subject to more than one reasonable interpretation." Riggs , 865 N.W.2d at 682. In interpreting a statute, statutory "words and phrases are construed according to rules of grammar and according to their common and approved usage." Minn. Stat. § 645.08(1) (2018). If the court determines that the statute is not ambiguous, the statute’s plain meaning controls. Dupey v. State , 868 N.W.2d 36, 39 (Minn. 2015).

Both parties argue that section 609.20(2) is unambiguous. Appellant argues that the reasonable-foreseeability modifier unambiguously applies to both the fifth-degree-assault clause and the misdemeanor-offense clause. The state contends that the reasonable-foreseeability modifier unambiguously applies only to the misdemeanor-offense clause. The parties do not contest the meaning of any word in the statute. They disagree about how the words relate to one another. We, therefore, must turn to rules of grammar to interpret the statute.

Appellant contends that Minn. Stat. § 609.20(2)"unambiguously requires foreseeability," because the statute sets out two ways to commit first-degree manslaughter (the fifth-degree-assault clause and the misdemeanor-offense clause), those two ways are not separated by a comma, and both are immediately followed by a single modifier (the reasonable-foreseeability modifier). Appellant argues that "the omission of a comma before the foreseeability modifier strongly suggests that it applies to both groups" and argues that the proper rule for us to apply is the series-qualifier rule.

The series-qualifier rule provides that "when several words are followed by a clause which is applicable as much to the first and other...