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Neal v. State

February 20, 2003



Appellant was properly sentenced under Minn. Stat. § 609.1095, subd. 2 (2002), the dangerous-offender statute, because the district court found, on the record, that appellant satisfied the statutory criteria.

A finding of severe aggravating factors is not required for a district court to impose more than a double durational departure under the dangerous-offender statute.

Under the facts of this case, the 480-month sentence imposed for the kidnapping offense is excessive and unreasonable and therefore is set aside in accordance with Minn. Stat. § 244.11, subd. 2(b) (2002).

Under the facts of this case, the 96-month consecutive sentence imposed for the aggravated robbery offense does not unfairly exaggerate appellant's criminality.

Affirmed in part, reversed in part, and remanded.

Heard, considered, and decided by the court en banc.

The opinion of the court was delivered by: Anderson, Paul H., Justice


A Ramsey County jury convicted appellant, Howard Neal, of one count of kidnapping and two counts of first-degree aggravated robbery, and the district court sentenced Neal to 576 months in prison. Using the dangerous-offender statute, Minn. Stat. § 609.1095, subd. 2 (2002), the court sentenced Neal to 480 months for the kidnapping, which is the statutory maximum and more than four times the presumptive sentence. The court also used the dangerous-offender statute to impose a 96-month, double durational departure, consecutive sentence for one count of aggravated robbery. Finally, the court sentenced Neal to 108 concurrent months for the second count of aggravated robbery. Neal petitioned for post-conviction relief on numerous grounds, including the length of his sentence. The post-conviction court denied the petition for relief. The Minnesota Court of Appeals affirmed, and we granted review solely on the issue of the 576-month sentence. We affirm in part, reverse in part, and remand.

In the summer of 1998, Cannick Thao, who was 15 years old, traveled to Saint Paul from California to spend time with her sister, Ying Thao Vang, and brother-in-law, Cher Vang. Thao spent the summer baby-sitting her nieces and nephews and occasionally assisted the Vangs at their Saint Paul delicatessen.

On July 13, Thao, her sister, and brother-in-law were working together at the delicatessen. Sometime between 1:30 and 2:00 p.m., appellant, Howard Neal, entered the store and ordered french fries from Ying Vang. Unable to pay for the fries, Neal promised her he would come in the next day to pay for them. Neal then gave Ying Vang a false name and address.

The next day, Thao and Ying Vang were working alone at the store. Around 1:25áp.m., Ying Vang left to make deliveries. Shortly after Ying Vang left, Neal entered the store. Thao proceeded to serve a customer who entered about the same time as Neal. After receiving her order, the customer left, leaving Thao alone with Neal. Neal again ordered french fries and stated that he was returning to pay for his french fries from the previous day. He then paid for the french fries and asked for a soda. After receiving his change, Neal jumped through the window above the counter, grabbed Thao, pressed a gun to her neck, and asked, "where is the money?" Thao gave Neal all the money from the cash register.

While still holding the gun to her neck, Neal forced Thao to walk to the front of the store to search for more money. When Thao could not locate money in a desk, Neal told her to get down on her knees. Neal then pointed the gun at Thao, "racked back" the gun, and told her that he was going to kill her.

Neal next ordered Thao to walk to the back of the store in an effort to find out what was behind a door. Neal discovered that the door led to a bathroom and ordered Thao to enter the bathroom, turn around, and put her hands behind her back. Neal then tied Thao's hands with a plastic tie and ordered her to kneel on the floor. Neal left Thao in this position for about two minutes and then returned, demanding to know when her brother-in-law and sister were coming back to the store. Thao told him they would be returning in a few minutes. Neal left and returned shortly, asking again when Thao's brother-in-law and sister would be returning, and where the money was. Neal then slapped Thao on the left side of her face and covered her entire face and head with masking tape, leaving only a small hole near the mouth, and again left her in the bathroom.

While Neal was robbing the store, Cher Vang arrived at the store and parked his vehicle in the back. He walked down the steps leading to the back door and noticed that the door was unlocked. Vang knocked, and hearing no response, opened the door. As he opened the door, Neal punched him in the face. Neal then grabbed Vang's shirt and repeatedly beat Vang on the head and face with his fists and the butt of the gun. Neal then forced Vang into the stairway. When Vang attempted to fight back, Neal threatened to kill him if he continued to struggle. During the beating, Neal forced Vang to the ground and attempted to choke him with a wire. Neal also took $500 and a driver's license from Vang's pants pocket. Neal then left the store and after unsuccessfully attempting to steal Vang's vehicle, he ran away.

After Neal left, Vang ran to the neighbors for help and then returned to the store. He found Thao tied up in the bathroom and helped to free her. A Saint Paul police officer, who came to the scene, described Thao's condition after the robbery as stunned or shocked. The officer confirmed that Thao suffered significant red bruising and scraping to her neck. In addition, Thao's wrists were visibly reddened from the plastic tie. As a result of his beating, Vang suffered numerous serious injuries, including a broken nose and multiple abrasions throughout his torso and upper and lower extremities.

After a five-month investigation, the police arrested Neal in December 1998. The state charged Neal with the following offenses: (1) aggravated robbery in the first degree of Vang in violation of Minn. Stat. § 609.245, subd. 1 (2002); (2) kidnapping of Thao in violation of Minn. Stat. § 609.25, subds. 1(3) and 2(2) (2002); and (3)áattempted aggravated robbery in the first degree of Thao in violation of Minn. Stat. §§ 609.17, subd. 1 (2002), and 609.245, subd. 1. On the first day of Neal's jury trial, the state amended the complaint, changing attempted aggravated robbery in the first degree to aggravated robbery in the first degree. The jury found Neal guilty on all three charges.

Neal's presentence investigation revealed that between 1980 and 1996 he accumulated convictions for nine felony offenses, including burglary, three counts of armed robbery, unauthorized use of a weapon, attempted murder, simple robbery, tampering with a witness, and possession of a pistol by a felon. In light of Neal's extensive criminal history, the state filed a motion requesting upward durational departures for the kidnapping of Thao and the aggravated robbery of Vang. It did so under the dangerous-offender statute, which allows the district court to impose upward durational departures when the offender is a danger to public safety. Minn. Stat. ยงรก609.1095, subd. 2. The state ...

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