Stearns County District Court File No. 73-CR-11-8020.
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, Minnesota; and Janelle Prokopec Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent).
David W. Merchant, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Worke, Judge.
Appellant challenges his conviction for fourth-degree assault, arguing that the evidence was insufficient to sustain the conviction and the district court erred by refusing to instruct the jury on the elements of the underlying offense of disorderly conduct. Appellant also asserts that the district court abused its discretion by admitting a redacted videotape of the incident; ruling that appellant could be impeached with three prior felony convictions; and refusing to sentence appellant to probation, a downward dispositional departure from the Minnesota Sentencing Guidelines. We affirm.
On September 7, 2011, Officer Ashley Capes of the Kimball Police Department was dispatched to investigate a complaint of threats made by appellant Evan Aaron Bickford. By the time Capes arrived, appellant had left the scene. Several hours later, on September 8, 2011, at about 12:17 a.m., Capes was sent to investigate another threats complaint. As she spoke with the complainant, Capes heard a loud rattling noise and a dog "barking very aggressively." She instructed the complainant to remain inside and went around the house to the neighbor's yard, where she saw appellant shaking a dog kennel. When he saw her, appellant started to run, but Capes ordered him to stop.
Appellant was initially cooperative, but when Stearns County Sheriff's Deputy Dennis Heinen arrived, he started to yell and pull away. Heinen noted that appellant had been drinking and appeared intoxicated. Heinen decided to handcuff appellant as a safety measure. At this point, appellant became aggressive, but ultimately agreed to permit Heinen to handcuff him. Heinen placed appellant in his squad car to prevent him from running away. Capes decided to arrest appellant for disorderly conduct, but when they asked appellant to move from Heinen's squad car to Capes' squad car, he became upset and said he would fight them. Heinen decided to transport appellant, with Capes as the arresting officer following in her squad car, to do the jail detention paperwork.
As Heinen started to drive, he heard a sound, like someone "[g]etting ready to make a big spit." Then he "felt fluids on [his] face." Heinen explained that there is a grate between the front and back seat of the squad car; there is a Plexiglas shield that can be closed to isolate the back seat, but he left it open so that he could "talk to the person in the back seat and make sure they are okay. Most times [he has] a conversation with them on the way to the jail so it makes the transport go easier."
Heinen's squad camera ran the whole time appellant was in the back of the squad; although the video portion of the camera was improperly activated, it made an audio recording of appellant's conduct in the squad car. A redacted version of the videotape was played for the jury, with all references to appellant's status of being on parole removed. Stearns County Sheriff's Deputy Matthew Mayers also testified, largely confirming Capes' and Heinen's testimony. After the district court ruled that the state could impeach him with three prior felony convictions, appellant chose not to testify.
Sufficiency of the evidence