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State v. Stay

Court of Appeals of Minnesota

February 11, 2019

State of Minnesota, Respondent,
v.
David Michael Stay, Appellant.

          Mille Lacs County District Court File No. 48-CR-16-951

          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.

         SYLLABUS

         Under Minn. Stat. § 609.20(2) (2014), a first-degree manslaughter conviction, predicated on an underlying fifth-degree assault, does not require proof that the defendant also acted "with such force and violence that death of or great bodily harm to any person was reasonably foreseeable."

          OPINION

          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 ...


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