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State v. Saue

November 2, 2004


Chippewa County District Court File No. K8-02-560.

Considered and decided by Wright, Presiding Judge; Randall, Judge; and Kalitowski, Judge.


The aggravating factors supporting an upward durational departure under the Minnesota Sentencing Guidelines must be found by the jury and proved by the state beyond a reasonable doubt, pursuant to the United States Supreme Court's holding in Blakely v. Washington, 124 S. Ct. 2531 (2004).

The opinion of the court was delivered by: Kalitowski, Judge

Affirmed in part, reversed in part, and remanded


Following a jury trial in which he was convicted of third-degree assault, appellant Ross Adam Saue argues that the upward dispositional and durational sentencing departures were based on judicial findings and therefore violate his Sixth Amendment right to a jury trial under Blakely v. Washington, 124 S.Ct. 2531 (2004).


On the night of August 29, 2002, Jeffrey Barrett and Marlee Nebben were confronted by Barrett's landlord, who had been attempting to evict Barrett. After Barrett pulled a knife, the landlord and another man jumped on Barrett, knocked the knife out of his hand, and started punching and beating him. The fight left Barrett "beaten up, bloody, and very angry." Nebben noticed that Barrett had bruises on both of his eyes, an egg-sized lump above one of his eyes, a mouthful of blood, and bruises and scrapes all over his body.

Meanwhile, many people had congregated near the area to watch the fight. After a brief argument between Barrett and Nebben, one of the onlookers chased after Barrett, tackled him, and threw him to the ground. Barrett hit his head on the cement, but managed to get up and flee in the direction of the railroad tracks. Four individuals chased after Barrett, and one of them caught up with Barrett by the railroad tracks, where he punched him down to the ground, and kicked him several times in the chest area. Nebben testified that at this point Barrett was "beaten up pretty badly." He had a black eye, a huge bump above his right eye, and his mouth and nose were bleeding. Most of the onlookers left, and Nebben saw Barrett running away.

Some of the onlookers told appellant Ross Saue and another individual, who were riding by in a car, that Barrett had pulled a knife on his landlord and had beaten up his girlfriend. Appellant and the other individual looked for but did not find Barrett. They were subsequently told that someone had spotted Barrett walking down Main Street looking "like he was tired" and "walking really slow." Appellant and four other individuals went looking for Barrett.

When the group spotted Barrett, they confronted him and chased him when he ran. Appellant and two other persons caught up with Barrett in a nearby skateboard park. Appellant told police that he caught Barrett, tackled him, dragged him to the ground, and kneed him in the face. All three proceeded to beat Barrett, kicking and punching him. Barrett was approximately five feet four inches tall and weighed between 117 and 130 pounds. In contrast, the three persons were all approximately six feet tall and weighed about 175 to 200 pounds. At trial, several people testified that at the end of the beating, as the other two persons were walking to the car, appellant stomped on Barrett. Barrett's body jerked forward and then went limp. But appellant testified that he stopped beating Barrett first and then called to the others to stop and leave.

One of the onlookers gave appellant a ride to her home, where he fell asleep. Meanwhile, the other two persons who had previously beaten Barrett returned to the skateboard park, where they picked up Barrett, shoved him into the car, and continued to beat him. Eventually, the two individuals pulled Barrett out of the car, continued beating him on the side of the road, and urinated on him before leaving. Later, the two individuals-with the help of two others-returned to the dirt road, located Barrett's body, drove to a gravel pit pond, and threw Barrett's body in the pond.

The autopsy report concluded that Barrett died of homicidal violence as a result of a beating. At the time of his death, Barrett had a blood alcohol concentration of.145. Appellant was charged with aiding and abetting second-degree intentional and felony murder, and was later indicted on charges of second-degree unintentional felony murder and first-degree assault.

The jury found appellant guilty of third-degree assault, a lesser-included offense, but acquitted him of all other charges. Prior to sentencing, the state moved for an upward dispositional and durational departure, which appellant opposed. Finding severe aggravating factors and substantial and compelling reasons justifying a durational and dispositional departure, the district court sentenced appellant to 60 months in prison, the statutory maximum sentence. Because appellant had no criminal history points, the presumptive sentence for his third-degree assault conviction was a stayed sentence of one year and one day.


1. Did the district court violate appellant's right to a jury trial by imposing an upward durational ...

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