                          This opinion will be unpublished and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
                                     A15-1923

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Mark William Latimer,
                                       Appellant.

                                  Filed October 11, 2016
                                         Affirmed
                                       Kirk, Judge

                              Chisago County District Court
                                 File No. 13-CR-13-396

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

Janet Reiter, Chisago County Attorney, Beth A. Beaman, Assistant County Attorney,
Center City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Bjorkman,

Judge.

                         UNPUBLISHED OPINION

KIRK, Judge

         Following a bench trial, appellant Mark William Latimer was convicted of

attempted first-degree murder, attempted second-degree murder, and first-degree assault.
On appeal, appellant argues that the attempted first- and second-degree murder convictions

must be reversed because the state failed to prove intent beyond a reasonable doubt.

Appellant raises a number of additional arguments in his pro se supplemental brief. We

affirm.

                                            FACTS

          On June 8, 2012, Rush City Correctional Facility security cameras captured the

following sequence of events. Appellant, an inmate at the facility, was working in the

industry area when he picked up, inspected, and set down a large wooden board. Shortly

thereafter, appellant retrieved the same board, carried it through the industry area, and

approached inmate J.V. from behind. J.V. was seated in a chair and working. Appellant

struck J.V. in the back of the head with the board, which caused J.V. to slump forward in

his chair and rendered him motionless. Appellant proceeded to strike J.V. in the head five

additional times. J.V. remained seated and motionless during this attack. After striking

J.V. a total of six times, appellant walked away and watched as staff responded to J.V.’s

injuries.

          The facility’s staff deemed J.V.’s injuries life-threatening and called an ambulance

to transport him to a nearby hospital where he would spend approximately four weeks

recovering. J.V. suffered fractures around his eye and a depressed skull fracture, which

caused bruising, bleeding, and swelling of the brain. J.V. underwent emergency surgery

and was placed in a medically induced coma. Expert testimony presented at trial indicated

that J.V.’s injuries would generally lead to death within six to eight hours without medical

treatment.


                                               2
       Appellant gave a taped statement to one of the facility’s special investigators on the

date of the attack.    During this statement, appellant explained J.V. had discovered

appellant’s prior criminal sexual conduct convictions, had called appellant a “cho mo,” and

had threatened him that morning. Appellant told the special investigator, “I ain’t got

nothing to lose so I bust him in his head.” Appellant also stated, “I was just gonna, just

gonna bust him in his head. I wasn’t gonna hurt him bad.” Appellant further stated that

another inmate voiced concern that appellant was “killing” J.V. and told appellant to “slow

down a little bit.” J.V. testified at trial that he knew of appellant but denied threatening

him.

       At trial, officer testimony established that threats between inmates often related to

the offense that placed an inmate in prison, and that sex offenders are sometimes targeted

by other inmates. At the facility, inmates are able to report threats in the following ways:

(1) through the facility’s kite system; (2) by verbally informing staff, who are present in all

areas; (3) by having a family member call the facility to report a threat; and (4) by speaking

directly with the lieutenant during rounds. Also, the facility has a policy to respond to kites

within five business days, and inmates are instructed to verbally communicate with staff in

emergencies.

       Appellant was initially charged with first-degree assault. The criminal complaint

was later amended to include additional charges of attempted first-degree murder and

attempted second-degree murder. In his written closing argument, appellant’s counsel

raised the affirmative defense of self-defense, which hinged on J.V.’s alleged threat to

appellant and appellant’s known status as a sex-offender. The district court concluded that


                                              3
the state proved the elements of all three charges beyond a reasonable doubt. The district

court also determined that the state proved beyond a reasonable doubt that appellant did

not act in self-defense. The district court imposed a 240-month sentence for the attempted

first-degree murder conviction. This appeal follows.

                                       DECISION

I.     The record contains sufficient evidence to prove beyond a reasonable doubt
       that appellant committed attempted first- and second-degree murder.

       Appellant argues that the evidence presented at trial failed to establish beyond a

reasonable doubt that appellant intended to kill J.V. One is guilty of attempted murder

when he, “with intent to commit a [murder], does an act which is a substantial step toward

. . . the commission of the [murder].” Minn. Stat. § 609.17, subd. 1 (2012). First-degree

murder requires a defendant to act with “premeditation and with intent to effect the death

of the person or of another.” Minn. Stat. § 609.185(a)(1) (2012). “‘[P]remeditation’ means

to consider, plan or prepare for, or determine to commit, the act referred to prior to its

commission.” Minn. Stat. § 609.18 (2012). Second-degree murder requires—as relevant

to this case—that a person act “with intent to effect the death of that person or another, but

without premeditation.” Minn. Stat. § 609.19, subd. 1(1) (2012). “‘With intent to’ or ‘with

intent that’ means that the actor either has a purpose to do the thing or cause the result

specified or believes that the act, if successful, will cause that result.” Minn. Stat. § 609.02,

subd. 9(4) (2012).

       “Because intent and premeditation are states of mind, they are generally proved only

by inferences drawn from a person’s words or actions in light of all the surrounding



                                               4
circumstances.” State v. Andrews, 388 N.W.2d 723, 728 (Minn. 1986) (citing State v.

Kirch, 322 N.W.2d 770, 773 (Minn. 1982)). A fact-finder “may infer that a person intends

the natural and probable consequences of his actions and a defendant’s statements as to his

intentions are not binding on the [fact-finder] if his acts demonstrated a contrary intent.”

State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997) (citing State v. Lundstrom, 285 Minn.

130, 140, 171 N.W.2d 718, 724-25 (1969)).

       With regard to premeditation, “the state must prove that some appreciable period of

time passed after the defendant formed the intent to kill, during which the statutorily

required consideration, planning, preparation, or determination took place.” State v.

Holliday, 745 N.W.2d 556, 563 (Minn. 2008). “[A]n inference of premeditation may be

supported by several categories of evidence, including planning activity, motive, the nature

of the [attempted] killing, and a defendant’s actions following the [attempted] killing.”

State v. Cox, 884 N.W.2d 400, 412 (Minn. 2016) (citations omitted).

       Because this appeal turns on questions of intent and premeditation, the evidence at

issue is circumstantial in nature. When evaluating circumstantial evidence, the reviewing

court uses a two-step analysis. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013).

“The first step is to identify the circumstances proved.” Id. (citing State v. Andersen, 784

N.W.2d 320, 329 (Minn. 2010)). “In identifying the circumstances proved, we defer to the

[fact-finder’s] acceptance of the proof of these circumstances and rejection of evidence in

the record that conflicted with the circumstances proved by the [s]tate.” Id. at 598-99

(quotation omitted). The reviewing court “construe[s] conflicting evidence in the light

most favorable to the verdict and assume[s] that the [fact-finder] believed the [s]tate’s


                                             5
witnesses and disbelieved the defense witnesses.” Id. at 599 (quotation omitted). “The

second step is to determine whether the circumstances proved are consistent with guilt and

inconsistent with any rational hypothesis except that of guilt.” Id. (quotation omitted).

       With regard to premeditation, we first look at the circumstances proved. Security

footage shows appellant pick up and set down a large wooden board, walk away, return to

the area to retrieve the same board, walk through the industry area, and approach J.V. from

behind. Appellant proceeded to attack J.V. Appellant targeted the back of J.V.’s head with

each of six blows, which the district court deemed “a vital area of the body.” Appellant

informed the facility’s special investigator that this attack was in response to J.V.

threatening appellant. Finally, appellant walked away after the attack without rendering aid

to J.V.   These proved circumstances are consistent with the conclusion that “some

appreciable period of time passed after [appellant] formed the intent to kill, during which

the statutorily required consideration, planning, preparation, or determination took place.”

Holliday, 745 N.W.2d at 563. Appellant has not offered a contrary, rational hypothesis.

Therefore, we conclude that the state proved that appellant acted with premeditation to kill

J.V.

       With regard to intent, appellant argues that there is a reasonable inference, other

than intent to kill, which can be drawn. Appellant argues that it is reasonable to infer that

he instead intended to preemptively incapacitate J.V. to prevent J.V. from acting on his

threats. However, to the contrary, the record establishes appellant carried out a vicious

attack that went well beyond an attempt to merely incapacitate J.V. As discussed above,

appellant struck J.V. in the back of the head with a board, which caused J.V. to slump


                                             6
forward in his chair and rendered him motionless. Appellant proceeded to strike J.V. in

the head five additional times. Finally, following the assault, appellant walked away and

did not render aid to J.V. This incident resulted in severe injuries that would have caused

J.V. to die had he not received emergency medical care.

       Appellant’s intent-related arguments are contradicted by the vicious nature of the

attack, the number of blows, appellant’s decision to target a vital area of J.V.’s body, and

the severity of J.V.’s injuries. These proved circumstances do not support a conclusion

that appellant merely intended to incapacitate J.V. Rather, as discussed by the district

court, appellant’s attack on J.V. is analogous to the attack perpetrated in State v. Geshick,

283 Minn. 380, 168 N.W.2d 331 (1969). In Geshick, the supreme court upheld an

attempted first-degree murder conviction where the defendant approached a fellow inmate

from behind and stabbed him in the back, nicking the outer surface of the victim’s lung,

and causing a nine-day hospitalization. Id. at 381-82, 168 N.W.2d at 331-32. Based on

those facts, the supreme court held “that the jury could conclude beyond a reasonable doubt

that defendant attempted, with premeditation and malice, to commit the act of [first-degree

murder].” Id. at 382, 168 N.W.2d at 332.

       Similarly, the district court’s conclusion here, that appellant acted with the requisite

intent to commit murder, is firmly supported by the record. Any contrary explanation is

irreconcilable with the facts of this attack. See, e.g., State v. Taylor, 650 N.W.2d 190, 207

(Minn. 2002) (“[Eight] blows shows that the act was intentional, and the use of a heavy

object on the victim’s head shows that the assailant intended to kill.” (citation omitted));

State v. Bock, 490 N.W.2d 116, 120 (Minn. App. 1992) (“The nature of [the victim’s]


                                              7
injuries and the severity of the blows to his head are evidence of [the defendant’s] intent to

kill.”), review denied (Minn. Aug. 27, 1992). As such, based on the record before this

court, the only rational hypothesis is that appellant acted with intent to commit attempted

first- and second-degree murder.

II.    Appellant’s pro se arguments lack merit.

       In his pro se supplemental brief, appellant first raises a number of arguments relating

to previous offenses and convictions. Appellant raised these arguments in a previous

habeas appeal. Latimer v. Fabian, No. A10-0646, 2010 WL 3958689, at *2-3 (Minn. App.

Oct. 12, 2010) (affirming the district court’s denial of the petition for writ of habeas corpus

because appellant “failed to demonstrate any due-process violation”), review denied (Minn.

Dec. 14, 2010). These arguments are not properly before this court as appellant may not

raise collateral matters on appeal from the judgment of conviction in this file. See State v.

Romine, 757 N.W.2d 884, 889-90 (Minn. App. 2008) (concluding that a party’s failure to

successfully challenge a court order precludes collateral attack on that order in a subsequent

proceeding), review denied (Minn. Feb. 17, 2009).

       Second, appellant argues that he is entitled to credit for time spent in the custody of

the Minnesota Sex Offender Program (MSOP) between the date of the attack and

sentencing. A criminal defendant is not entitled to such credit when placement in a secure

treatment facility is based upon prior civil commitment and is unrelated to the criminal

charges for which he was later sentenced. State v. Johnson, 744 N.W.2d 376, 380 (Minn.

2008). Appellant’s placement in the MSOP is unrelated to this criminal case. Therefore,

appellant’s argument regarding jail credit is meritless.


                                              8
       Third, appellant argues that he was deprived of a fair trial due to ineffective

assistance of counsel. Specifically, appellant argues that counsel was ineffective in failing

to: (1) explain to appellant that he was charged with attempted murder; (2) conduct

sufficient investigation; and (3) perform adequately during the trial. In addition, appellant

asserts that counsel conspired with state agencies during the representation.

       To establish ineffective assistance of counsel, “[t]he defendant must affirmatively

prove that his counsel’s representation ‘fell below an objective standard of reasonableness’

and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561

(Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052,

2068 (1984)). Minnesota appellate courts will generally not review such a claim when it

is based on trial strategy. Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).

       There is no indication in the record that counsel failed to inform appellant of the

attempted murder charges. On June 17, 2014, an amended complaint was filed, which

added the charges of attempted first- and second-degree murder. The record indicates that

appellant received a copy of the amended complaint and waived further reading of his

rights. The record also indicates that counsel conducted sufficient investigation, performed

reasonably at trial, and presented a reasonable defense focused on intent and self-defense.

Appellant’s arguments on these points implicate issues of trial strategy, which this court

will generally not review. Id.; Voorhees v. State, 627 N.W.2d 642, 651 (Minn. 2001)

(“[M]atters of trial strategy, including which defenses to raise at trial, will not be reviewed

later for competence.”). Finally, there is no indication that counsel conspired against


                                              9
appellant during the representation. We conclude that appellant was not deprived of a fair

trial through ineffective assistance of counsel.

       Fourth, appellant raises various arguments relating to the deprivation of his right to

represent himself and to receive a fair trial. While this section of the pro se brief contains

a number of citations, appellant fails to demonstrate any prejudice or injury. Rather,

appellant merely asserts that the facility’s law library was inadequate. These arguments

are meritless.

       Fifth, appellant asserts that his constitutional rights were violated when the state

added attempted first- and second-degree murder charges following his refusal to accept a

plea offer. The United States Supreme Court has concluded that, “by tolerating and

encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally

legitimate the simple reality that the prosecutor’s interest at the bargaining table is to

persuade the defendant to forgo his right to plead not guilty.” Bordenkircher v. Hayes, 434

U.S. 357, 364, 98 S. Ct. 663, 668 (1978). Moreover, appellant does not present—and the

record does not contain—any evidence of vindictive prosecution. State v. Pettee, 538

N.W.2d 126, 132 (Minn. 1995) (“A mere opportunity for vindictiveness is insufficient to

justify imposing an inflexible prophylactic presumption [of a due process violation].”

(citing United States v. Goodwin, 457 U.S. 368, 384, 102 S. Ct. 2485, 2494 (1982))).

Therefore, appellant’s argument regarding overcharging is meritless.

       Lastly, appellant’s pro se brief presents a Miranda-based argument relating to

appellant’s taped statement following the attack. Appellant raised no objection when this




                                             10
statement was introduced at trial. As such, this argument is forfeited on appeal. State v.

Wellman, 341 N.W.2d 561, 564 (Minn. 1983).

      Affirmed.




                                           11
