                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0245

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Jesus Armando Puente,
                                     Appellant.

                               Filed January 19, 2016
                                      Affirmed
                                  Schellhas, Judge

                           Sherburne County District Court
                              File No. 71-CR-13-1825

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, Tim Sime, Assistant County Attorney,
Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Renée Bergeron, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Schellhas, Presiding Judge; Cleary, Chief Judge; and

Randall, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges the sufficiency of the evidence to support his convictions of

first-degree assault and pattern of stalking conduct.1 He also challenges his sentence,

arguing that the district court abused its discretion by denying his motion for a downward

durational departure. We affirm appellant’s convictions and sentence.

                                         FACTS

       Appellant Jesus Armando Puente and T.P. married in August 2003, had two children

together, and separated in August 2012. On August 13, 2012, the district court issued a

one-year order for protection (OFP) following a hearing at which both Puente and T.P.

appeared. The OFP prohibited Puente from having any contact with T.P. or being within

150 feet of T.P.’s residence. In February 2013, Puente was convicted of violating the OFP

in October 2012. On August 9, 2013, the district court extended the OFP through August

14, 2014. On September 19, 2013, based on an agreement between Puente and T.P., the

court amended the OFP to permit personal contact initiated by T.P. away from her

residence, telephone contact between Puente and T.P. regarding the children’s welfare and




1
  Appellant also challenges the sufficiency of the evidence to support unadjudicated guilty
verdicts on charges of second- and fourth-degree assault. We do not address this challenge.
See State v. Hoelzel, 639 N.W.2d 605, 609 (Minn. 2002) (concluding that district court’s
finding of guilt was not appealable in absence of official judgment of conviction or
conviction order entered by court); cf. State v. Ashland, 287 N.W.2d 649, 650 (Minn. 1979)
(declining to address sufficiency of evidence for jury’s guilty verdict on offenses of which
defendant was not formally adjudicated guilty and for which defendant was not sentenced).

                                             2
between Puente and the children, and two hours of parenting time for Puente every other

week and such additional time as agreed to by T.P.

       On December 28, 2013, after an agreed-to sledding outing with T.P. and the

children, Puente entered T.P.’s vehicle and refused to exit it for about 45 minutes. He then

called T.P.’s phone 886 times between 6 p.m. on December 28 and 2:50 a.m. on December

29. Puente also called T.P.’s phone 132 times on December 30 and sent at least one

threatening text message. On the evening of December 30, Puente pulled up in front of

T.P.’s house in a full-size pickup truck. Lieutenant Sam Olson of the Big Lake Police

Department approached the truck’s open passenger window, rested his left arm on the

window frame, and announced his intention to arrest Puente for violating the OFP. Puente

drove away at about 15 to 25 miles per hour with Lt. Olson’s jacket caught in the window.

Lt. Olson lost his footing when he could not free his arm from the moving truck, and Puente

dragged him about 100 feet before stopping the truck.

       Respondent State of Minnesota charged Puente with first-degree assault (deadly

force against peace officer), second-degree assault (dangerous weapon), fourth-degree

assault (demonstrable bodily harm to peace officer), gross-misdemeanor violation of an

OFP (within ten years of prior conviction), stalking, and pattern of stalking conduct. A jury

found Puente guilty as charged. The district court adjudicated Puente guilty of first-degree

assault, stalking, and pattern of stalking conduct; the court took no action on the guilty

verdicts for second-degree assault, fourth-degree assault, and violation of an OFP. The

court denied Puente’s motion for a downward durational departure and sentenced him to




                                             3
122 months’ imprisonment for first-degree assault, 15 months’ concurrent imprisonment

for stalking, and 28 months’ concurrent imprisonment for pattern of stalking conduct.

       This appeal follows.

                                     DECISION

Sufficiency of evidence

       When reviewing a jury verdict, an appellate court considers whether the legitimate

inferences drawn from the evidence would reasonably support the jury’s conclusion that

the defendant was guilty beyond a reasonable doubt. State v. Pratt, 813 N.W.2d 868, 874

(Minn. 2012). Appellate review is limited to a close analysis of the record to determine

whether the evidence, when viewed in the light most favorable to the conviction, is

sufficient to allow the jury to reach the verdict that it did. State v. Webb, 440 N.W.2d 426,

430 (Minn. 1989). The reviewing court must assume that “the jury believed the state’s

witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101,

108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with

due regard for the presumption of innocence and the requirement of proof beyond a

reasonable doubt, could reasonably conclude that the defendant was guilty of the charged

offense. Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004).

       The state must prove every element of a charged offense. See State v. Struzyk, 869

N.W.2d 280, 289 (Minn. 2015) (“It is axiomatic that it is the State’s burden to prove every

element of the charged offense.”). “The State ordinarily proves a [person]’s mental state

by circumstantial evidence.” See State v. Bahtuoh, 840 N.W.2d 804, 809 (Minn. 2013).

Minnesota courts employ a two-step process when reviewing convictions based on


                                             4
circumstantial evidence. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010). First, the

reviewing court identifies the circumstances proved. Id. In doing so, the court views the

evidence “in the light most favorable to the verdict.” Pratt, 813 N.W.2d at 874. The court

defers to the fact-finder’s acceptance and rejection of evidence and to its credibility

determinations. Andersen, 784 N.W.2d at 329; see also State v. Hughes, 749 N.W.2d 307,

312 (Minn. 2008) (stating that juries are “in the best position to weigh the credibility of the

evidence and thus determine which witnesses to believe and how much weight to give their

testimony”).

       Next, the reviewing court examines the reasonableness of the inferences that can be

drawn from the circumstances proved, including inferences of innocence, as well as guilt.

Andersen, 784 N.W.2d at 329. The circumstances proved must be consistent with guilt and

inconsistent with any other rational hypothesis negating guilt. Id. at 330. The reviewing

court does not defer to the fact-finder’s choice between reasonable inferences. Id. at 329–

30. Appellate courts “view the circumstantial evidence as a whole, not as isolated facts.”

State v. Hurd, 819 N.W.2d 591, 599 (Minn. 2012). The “[s]tate does not have the burden

of removing all doubt, but of removing all reasonable doubt.” State v. Al–Naseer, 788

N.W.2d 469, 473 (Minn. 2010). Lastly, a rational hypothesis negating guilt must be based

on more than mere conjecture or speculation. See Andersen, 784 N.W.2d at 330 (stating

that [appellate courts] will not overturn a conviction based on circumstantial evidence on

the basis of mere conjecture” (quotation omitted)).




                                              5
       Pattern of stalking conduct

                     A person who engages in a pattern of stalking conduct
              with respect to a single victim . . . which the actor knows or has
              reason to know would cause the victim under the
              circumstances to feel terrorized or to fear bodily harm and
              which does cause this reaction on the part of the victim, is
              guilty of a felony.

Minn. Stat. § 609.749, subd. 5(a) (2012). “[A] ‘pattern of stalking conduct’ means two or

more acts within a five-year period that violate or attempt to violate the provisions of

[specified statutes],” including “section 518B.01, subdivision 14 (violations of domestic

abuse orders for protection).” Id., subd. 5(b) (2012). “[T]he phrase feel terrorized in

Minn.Stat. 609.749, subd. 5 means to ‘feel extreme fear resulting from violence or

threats.’” State v. Franks, 765 N.W.2d 68, 74 (Minn. 2009). “[T]he State does not have to

prove that the conduct amounted to an express threat.” Id. at 75. Rather, “[t]he test of

whether words or phrases are threatening is the context in which they are used.” Id.

“Finally, it is proper to view a defendant’s words and acts in the context of the defendant’s

relationship with the victim, including evidence of past crimes against the victim.” Id.

       In this case, the district court convicted Puente of pattern of stalking conduct based

on his October 2012 and December 2013 violations of the OFP. Puente argues that the state

failed to prove beyond a reasonable doubt that (1) “Puente knew or should have known his

conduct would cause [T.P.] to ‘feel extreme fear resulting from violence or threats’ or to

fear bodily harm” and (2) Puente’s conduct caused T.P. to experience such extreme fear.

       Pertinent to Puente’s and T.P.’s mental states, the circumstances proved are:

                    (1) In October 2012, about two months after T.P. sought
              and received an OFP prohibiting Puente from having any


                                              6
contact with T.P. or being within 150 feet of her residence,
Puente sent T.P. a text message that said, “If you don’t answer
your phone I’m going to come to the house”; went to T.P.’s
house; rang the doorbell, knocked on the front door, and tried
to talk with T.P. for about two hours; and eventually became
angry and kicked the door twice.

       (2) Puente’s October 2012 violation of the OFP caused
T.P. to feel “annoyed,” “upset,” and “angry.”

       (3) On December 28, 2013, Puente got into the backseat
of T.P.’s vehicle with the children and would not get out of the
vehicle for about 45 minutes despite T.P.’s “[c]ontinuous[]”
requests that he get out.

        (4) When Puente refused to leave T.P.’s vehicle on
December 28, 2013, T.P. felt “[a]nnoyed and just tired and
done”; secretly called 911, hoping for police assistance, and
“let the phone just kind of sit there” while Puente was in the
vehicle; saw that one of the children was “really upset” and
“visibly shaken” by the incident; and reported the incident to
police.

       (5) Soon after the December 28, 2013 incident, Puente
began calling T.P.’s phone “constantly” or “continuous[ly],”
calling 886 times between 6 p.m. on December 28 and 2:50
a.m. on December 29 and calling 132 times on December 30,
for a total of over 1,000 calls in about 48 hours; Puente also
sent T.P. a text message that said, “If you don’t answer the
phone I’m going to come to the house with police.”

        (6) Puente continued to call T.P.’s phone even after she
tried to block the calls, told him to stop, told him that she was
going to seek another amendment of the OFP to prohibit all
contact, and stopped answering the calls.

       (7) The December 28–30, 2013 phone contact was out-
of-character for Puente and “really stressful” for T.P.; caused
T.P. to feel “irritated,” “harassed,” “worried,” “stressed out,”
“annoyed,” “fearful . . . of what might happen,” “upset,” and
powerless to stop the contact; caused T.P. to be uncertain and
worry about whether Puente was going to come to her house in
violation of the OFP; prevented T.P. from using her phone at


                               7
              times; prompted T.P. to seek another amendment of the OFP
              to prohibit all contact; and induced T.P. to call police, ask what
              would happen if Puente came to her house, and request police
              assistance.

                     (8) After dark on December 30, 2013, while at her house
              with the children, T.P. started “peeking out the window to see
              if [Puente] was going to drive by,” feeling “fearful”; saw
              Puente drive a truck by her house and pull up within 150 feet
              of her house; thought, “Uh-oh, something might happen,” still
              feeling “fearful”; saw Puente interact with police officers and
              then saw the truck “fl[y]” off “fast,” taking one officer with it;
              felt “shocked,” “worried,” and “concerned”; and found the
              incident “scary.”

These circumstances are consistent with reasonable inferences that, within the context of

the relationship between Puente and T.P., (1) Puente knew or had reason to know that his

repeated violations of the OFP were threatening and would cause T.P. “to feel extreme fear

resulting from . . . [the] threats” and (2) Puente’s repeated violations of the OFP did cause

T.P. “to feel extreme fear resulting from . . . [the] threats.” See Minn. Stat. § 609.749, subd.

5 (2012); Franks, 765 N.W.2d at 74 (quotation omitted). Furthermore, when viewed in the

light most favorable to the guilty verdict, the circumstances proved are inconsistent with

any rational hypotheses except that (1) Puente at least had reason to know that his OFP

violations would cause T.P. to feel extreme fear and (2) the violations did cause T.P. to feel

extreme fear. See Franks, 765 N.W.2d at 74, 77 (“[An appellate court’s] obligation is not

to retry the case but to construe the evidence in the light most favorable to the verdict.”).

We therefore conclude that the evidence was sufficient to convict Puente of pattern of

stalking conduct.




                                               8
       First-degree assault (deadly force against peace officer)

       “‘Assault’ is: (1) an act done with intent to cause fear in another of immediate bodily

harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon

another.” Minn. Stat. § 609.02, subd. 10 (2012). An act done with intent to cause fear in

another of immediate bodily harm or death is known as assault-fear, and the intentional

infliction of or attempt to inflict bodily harm upon another is known as assault-harm.

Struzyk, 869 N.W.2d at 286 n.2. Assault-fear requires specific intent; that is, the defendant

must have performed a volitional act while intending to cause another person to fear

immediate bodily harm or death. State v. Fleck, 810 N.W.2d 303, 309 (Minn. 2012).

Completed assault-harm requires only general intent; that is, the defendant merely must

have performed a volitional act that resulted in bodily harm to another person. Id. at 308–

10, 312 n.5.

        “Whoever assaults a peace officer . . . by using or attempting to use deadly force

against the officer . . . while the officer . . . is engaged in the performance of a duty imposed

by law” is guilty of first-degree assault. Minn. Stat. § 609.221, subd. 2(a) (2012).

“‘[D]eadly force’ means force which the actor uses with the purpose of causing, or which

the actor should reasonably know creates a substantial risk of causing, death or great bodily

harm.” Minn. Stat. § 609.066, subd. 1 (2012). Driving a vehicle while another person is on

the exterior of the vehicle may constitute deadly force. See State v. Bernardi, 678 N.W.2d

465, 468–69 (Minn. App. 2004) (concluding that state presented sufficient evidence of

deadly force where “jury could have found that [defendant] drove [a] car at about 30 miles

an hour for at least 120 feet with [a police officer] lying on the hood,” reasoning that “jury


                                               9
could have concluded that [defendant] reasonably should have known that his conduct

created a substantial risk that [the officer] would fall off or under or in front of the car and

could be run over by the moving vehicle, or strike his head on the car, or strike his head on

the pavement, any of which events could result in [the officer]’s death or great bodily

harm”).

       In this case, Puente was convicted of first-degree assault (deadly force against peace

officer) based on his conduct of driving a truck while Lt. Olson was hanging on its exterior.

Puente attacks the sufficiency of the evidence to prove the deadly-force element of the

offense, arguing that “the state did not prove beyond a reasonable doubt that he [drove the

truck] with a purpose to scare [Lt.] Olson or with the knowledge that his [driving conduct]

created a substantial risk of causing [Lt.] Olson death or great bodily harm.” Puente thereby

fails to acknowledge that the deadly-force element also is satisfied by proof beyond a

reasonable doubt that Puente reasonably should have known that his driving conduct

created a substantial risk of causing death or great bodily harm to Lt. Olson. See Minn.

Stat. § 609.066, subd. 1.

       As relevant to Puente’s mental state during his driving conduct, the circumstances

proved are:

                     (1) After dark on December 30, 2013, Puente was sitting
              in a full-size pickup truck within 150 feet of T.P.’s house, in
              violation of the OFP.

                     (2) Lt. Olson approached the truck on foot, rested his
              left arm on the “open window door frame” of the passenger
              side of the truck, told Puente that he was in violation of the
              OFP, and announced an intention to arrest Puente.



                                              10
                     (3) Puente looked at Lt. Olson and said, “F-ck you”; put
              the truck in gear; started putting up the truck’s passenger
              window; ignored Lt. Olson’s command to stop; accelerated
              quickly; and drove away at about 15 to 25 miles per hour.

                     (4) Lt. Olson’s jacket became “caught in the [truck’s]
              window, between the window and the door frame”; Lt. Olson
              was unable to free his left arm from the truck, lost his footing,
              started to “drag” next to the truck, and felt his left foot hit the
              truck’s tire “a couple times.”

                    (5) While driving, Puente knew that Lt. Olson was
              hanging on the exterior of the truck, heard Lt. Olson say that
              he was being dragged, and ignored Lt. Olson’s commands to
              stop.

                     (6) Lt. Olson steadied himself with his left arm, grabbed
              his duty weapon with his right hand, put the gun through the
              open passenger window, and yelled at Puente to stop the truck
              or be shot.

                    (7) Puente “looked over at [Lt. Olson] and then looked
              forward and continued driving,” so Lt. Olson again yelled at
              Puente to stop or be shot.

                     (8) Puente stopped the truck abruptly, and Lt. Olson fell
              to the ground, bruising his right arm and right knee area and
              causing soreness and pain that lasted “[a] couple weeks.”

These circumstances are consistent with a reasonable inference that Puente either drove the

truck with the purpose of causing, or reasonably should have known that his driving

conduct created a substantial risk of causing, death or great bodily harm to Lt. Olson. See

Minn. Stat. §§ 609.066, subd. 1, .221, subd. 2(a); Bernardi, 678 N.W.2d at 468–69.

Furthermore, when viewed in the light most favorable to the guilty verdict, the

circumstances proved are inconsistent with any rational hypothesis except that Puente at

least reasonably should have known that his driving conduct created a substantial risk of



                                              11
causing death or great bodily harm to Lt. Olson. See Franks, 765 N.W.2d at 77.

Accordingly, we conclude that the evidence was sufficient to convict Puente of first-degree

assault.

Downward durational departure

       “[Appellate courts] review sentencing decisions for an abuse of discretion.” State v.

Kangbateh, 868 N.W.2d 10, 14 (Minn. 2015). A district court abuses its discretion by

granting a downward departure that results in a sentence less than the mandatory minimum.

See State v. Rausch, 799 N.W.2d 19, 20 (Minn. App. 2011) (stating in syllabus that “[i]n

the absence of express authorization by the legislature, a district court is without authority

to disregard a statutory mandatory-minimum sentence”); cf. State v. Olson, 325 N.W.2d

13, 18 (Minn. 1982) (stating that “the legislature may restrict the exercise of judicial

discretion in sentencing . . . by providing for mandatory sentences”).

       “Whether [a statute] requires a mandatory minimum term of incarceration is a

question of statutory construction which [appellate] court[s] review[] de novo.” State v.

Bluhm, 676 N.W.2d 649, 651 (Minn. 2004). “The objective of statutory interpretation is to

ascertain and effectuate the Legislature’s intent.” Struzyk, 869 N.W.2d at 284. “If the

Legislature’s intent is clear from the statute’s plain and unambiguous language, then

[appellate courts] interpret the statute according to its plain meaning without resorting to

the canons of statutory construction.” Id. at 284−85 (quotation omitted).

       Minnesota law provides that a person convicted of first-degree assault (deadly force

against peace officer)




                                             12
                 shall be committed to the commissioner of corrections for not
                 less than ten years . . . . A defendant convicted and sentenced
                 as required by this paragraph is not eligible for probation,
                 parole, discharge, work release, or supervised release, until that
                 person has served the full term of imprisonment as provided by
                 law . . . .

Minn. Stat. § 609.221, subd. 2(b) (2012). The language of this statute is plain and

unambiguous: Any sentence for first-degree assault (deadly force against peace officer)

must include an executed term of imprisonment for at least 120 months. See id.; see also

State v. Leathers, 799 N.W.2d 606, 608 (Minn. 2011) (stating that “[t]he offense [of first-

degree assault (deadly force against peace officer)] is subject to a minimum sentence”).

       Puente nevertheless argues that the district court had discretion to disregard the

statutory requirement of a minimum sentence and grant his motion for a 60-month

downward departure. He offers no legal authority in support of this argument, and we have

found none. Because the shortest presumptive sentence for Puente’s conviction of first-

degree assault was less than the mandatory minimum sentence for that offense, the district

court had no discretion to grant a downward durational departure.2 See Rausch, 799

N.W.2d at 20. The court’s denial of Puente’s departure motion therefore was not an abuse

of discretion.




2
  The district court sentenced Puente for first-degree assault based on a criminal-history
score of 3. Puente’s presumptive sentence was 122 months’ imprisonment, with a
permissive range of 104 to 146 months’ imprisonment. See Minn. Sent. Guidelines 4.A
(establishing presumptive sentence of 122 months’ imprisonment, with permissive range
of 104 to 146 months’ imprisonment, for severity-level 9 offense with criminal-history
score of 3), 5.A (providing that first-degree assault is severity-level 9 offense) (2012).

                                                13
       Puente also appears to argue that we should “reverse [his] 122 month sentence and

remand to the district court for imposition of a lesser sentence that is appropriate under

these circumstances” because his sentence is “unreasonable, inappropriate, excessive, [or]

unjustifiably disparate” under Minn. Stat. § 244.11, subd. 2(b) (2012). Puente admits that

his driving conduct “was a volitional act” yet claims that “it was [done] without the malice

or mens rea to deliberately put [Lt.] Olson in fear or in actual danger.” According to Puente,

his “lack of mens rea” lessens his culpability and warrants our “[e]xercise of . . . authority”

to reverse his sentence.

       In so claiming, Puente falsely equates general intent with a lack of mens rea, citing

a law review article in support of the notion that Fleck’s holding that assault-harm is a

general-intent crime “diminishes the integrity of the criminal law in that it exaggerates the

criminality of the merely volitional actor, such as Puente, and ignores the legislative

definition of ‘assault.’” But we are bound by Fleck’s interpretation of the statutory

definition of “assault.” See State v. Rohan, 834 N.W.2d 223, 227 (Minn. App. 2013)

(stating that “when the supreme court has already construed a statute, this court is bound

by that interpretation”), review denied (Minn. Oct. 15, 2013). Puente’s general intent was

sufficient to support his conviction of first-degree assault (deadly force against peace

officer), an offense that carries a mandatory minimum sentence of 120 months’

imprisonment. See Minn. Stat. § 609.221, subd. 2(b). We do not believe that Puente’s 122-

month sentence is “unreasonable, inappropriate, excessive, [or] unjustifiably disparate.”

See Minn. Stat. § 244.11, subd. 2(b).

       Affirmed.


                                              14
