                          This opinion will be unpublished and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
                                     A13-2312

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Justin Thadeus Amick,
                                         Appellant.

                                Filed February 23, 2015
                    Affirmed in part, reversed in part, and remanded
                                    Schellhas, Judge

                               Dakota County District Court
                                File No. 19HA-CR-12-986

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

James C. Backstrom, Dakota County Attorney, Heather D. Pipenhagen, Stacy St. George,
Assistant County Attorneys, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Stan Keillor, Special Assistant
State Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Smith, Presiding Judge; Schellhas, Judge; and Hooten,

Judge.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges his conviction of first-degree assault and the imposition of

consecutive sentences for first-degree assault and possession of a firearm by an ineligible

person. We affirm appellant’s conviction, reverse his sentence, and remand.

                                          FACTS

       In the early morning hours of March 18, 2012, appellant Justin Thadeus Amick

drove with M.S. to D.W.’s home in Inver Grove Heights, where Amick and M.S. drank a

couple of beers. After an hour or two, they left D.W.’s home in Amick’s car. Amick

drove around and then stopped on the side of the road. While the car was stopped, M.S.

saw lights, heard two gunshots, and saw a gun in Amick’s hand. According to M.S.,

Amick then drove away very fast while screaming and letting go of the wheel, saying,

“What have I done? What have I done?” Amick also asked M.S. to call his son’s mother

and drove to his own mother’s West St. Paul home. Amick and M.S. entered the home

and Amick yelled to his mother, “I messed up bad. This time I messed up bad.” Amick

left the home, and M.S. asked Amick’s mother to call the police.

       On March 18, 2012, Inver Grove Heights police officers Joseph Robertson and

Eric Bohrer were on duty, patrolling in separate squad cars. At approximately 4:44 a.m.,

dispatch notified the officers that a complainant had reported hearing five gunshots near

his Inver Grove Heights home. Each officer drove to the reported area without activating

his squad car’s lights or siren. Near the reported area, the officers saw a car parked on the

side of the road and stopped their squad cars on the opposite side of the road, facing the


                                             2
parked car. The officers saw a male, later identified as Amick, in the driver’s seat of the

parked car; a female, later identified as M.S., in the passenger seat of the car; and another

male, later identified as the complainant, G.S., on foot near the car. Officer Robertson

thought that the driver of the parked car resembled S.A., Amick’s brother.

       Officer Robertson exited his squad car, moved to a position about 10 to 15 feet

away from the driver of the parked car, and gave two or three verbal commands to the

car’s occupants to show their hands. Officer Bohrer also exited his squad car and moved

to a position about 25 to 30 feet behind Officer Robertson. Officer Robertson saw the

driver of the parked car make furtive movements; noticed that the driver’s hand was

outside of the car’s window; and “briefly saw the muzzle of a handgun, . . . heard the gun

fire, . . . [and] saw the muzzle flash.” After the muzzle flash dissipated, Officer Robertson

again saw the muzzle of the gun and observed that the muzzle was “aimed directly” at

him both before and after the gun fired. Officer Bohrer heard the driver yell, “F-ck you,”

and saw an “arm come out and . . . a muzzle flash and it was pointed directly at Officer

Robertson.” After the muzzle flash, Officer Bohrer saw a black gun in the driver’s hand.

While the officers moved to take cover behind Officer Robertson’s squad car, Officer

Bohrer heard a second gunshot.

       The officers drew their guns, aimed them at the driver of the parked car, and

Officer Robertson again saw that the driver was pointing the gun at him. Officer Bohrer

ordered the driver to drop the gun; heard the driver yell, “Fine”; and saw the driver throw

the gun, which hit the hood of Officer Robertson’s squad car. The driver then put the car

in reverse and backed up at a high rate of speed. Officer Robertson secured the gun that


                                             3
the driver had thrown and radioed dispatch. Officer Robertson reported that “officers had

been shot at,” provided a description of the suspect car, and stated that S.A. was a

possible suspect.

       West St. Paul on-duty police officer Elyse Wood received information from

dispatch about the shooting, including that S.A. was a possible suspect. Dispatch asked

Officer Wood to respond to a West St. Paul home from which several 911 hang-up calls

had been received. Dispatch told Officer Wood that the name Amick had popped up

when the calls were received. Upon arrival at the home, Officer Wood immediately

recognized S.A. outside the home. He was with M.S. Officer Wood also saw the suspect

car. S.A. said that Amick “was inside and was going crazy.” A canine officer and several

other officers arrived at the home, and Amick’s mother and a juvenile exited the home.

Police officers apprehended Amick behind the home in some woods and found five shell

casings inside the suspect car.

       Respondent State of Minnesota charged Amick with two counts of attempted first-

degree murder (peace officer) under Minn. Stat. §§ 609.17, subd. 1, .185(a)(4) (2010);

two counts of attempted second-degree murder (intentional) under Minn. Stat. §§ 609.17,

subd. 1, .19, subd. 1(1) (2010); two counts of first-degree assault (deadly force against

peace officer) under Minn. Stat. § 609.221, subd. 2(a) (2010); two counts of second-

degree assault (dangerous weapon) under Minn. Stat. §§ 609.02, subd. 10(1) or (2), .222,

subd. 1 (2010); and possession of a firearm by an ineligible person under Minn. Stat.

§ 624.713, subd. 1(2) (2010). A jury found Amick guilty of one count of first-degree

assault (deadly force against peace officer), one count of second-degree assault


                                           4
(dangerous weapon), and possession of a firearm by an ineligible person. The district

court sentenced Amick to 146 months’ imprisonment for first-degree assault and a

consecutive 60-month sentence for possession of a firearm by an ineligible person.

       This appeal follows.

                                       DECISION

Admissibility of statement to police

       Amick argues that the district court erred by refusing to suppress a video-recorded

and transcribed statement that he gave on March 19, 2012, to Sergeant Richard Schroeder

and Detective David Sjogren of the Dakota County Sheriff’s Office, asserting that he

invoked his right to counsel before giving the statement. The district court found that

Amick was advised of his Miranda rights, understood them, and knowingly and

intelligently waived his rights, implicitly concluding that Amick failed to invoke his right

to counsel before giving the statement.

       “If a criminal suspect faces custodial interrogation, the suspect must be informed

that the suspect has a right to remain silent and has a right to speak with an attorney.”

State v. Anderson, 789 N.W.2d 227, 233 (Minn. 2010) (citing Miranda v. Arizona, 384

U.S. 436, 467–73, 86 S. Ct. 1602, 1624–27 (1966)).

                     It is a violation of the U.S. Constitution for
              investigators to continue a custodial interrogation after a
              suspect has unambiguously requested the assistance of
              counsel. To invoke the right to counsel a suspect must do
              more than make reference to an attorney. A suspect’s request
              for counsel is unequivocal if a reasonable police officer, in
              the circumstances, would understand the statement to be a
              request for an attorney.



                                             5
              ....

                     Under the U.S. Constitution, a suspect must
              unambiguously and unequivocally invoke his right to counsel
              and investigators are not required to clarify ambiguous
              requests for an attorney. But we have held that suspects in
              Minnesota are afforded greater protection against compelled
              self-incrimination. The right to counsel under the Self–
              Incrimination Clause protects a suspect’s desire to speak with
              police only through counsel. Consequently, when a suspect
              makes an equivocal or ambiguous statement that could be
              construed as a request for counsel, investigators must cease
              questioning the suspect except as to narrow questions
              designed to clarify the accused’s true desires respecting
              counsel.

State v. Ortega, 798 N.W.2d 59, 70 (Minn. 2011) (quotations and citations omitted). A

suspect’s mere reference to an attorney or inquiry as to whether he needs an attorney is

not an unequivocal request for counsel. Id. at 71. A district court’s application of the

reasonable-officer standard is reviewed de novo. Id. at 70. Likewise, “[appellate courts]

will review de novo the application of the ‘stop and clarify’ rule.” Id. But “[f]actual

determinations, such as the suspect’s precise words and the actions and impressions of

the suspect and officer, are reviewed for clear error.” Id. (quotation omitted).

       In this case, after Detective Sjogren read the Miranda warning aloud, the

following colloquy occurred:

              DETECTIVE SJOGREN: You understand each of those
              rights?
              AMICK: All right.
              DETECTIVE SJOGREN: You do?
              AMICK: I don’t have a lawyer.
              DETECTIVE SJOGREN: Right.
              AMICK: I don’t need, I mean I don’t know if I need one right
              now, but I’m going to need one for court I suppose.



                                              6
              DETECTIVE SJOGREN: Yeah and you’ll be going to court
              tomorrow, I think they have to charge you by noon if they
              elect to charge you with anything okay? So, you know, we
              wanted to clarify a few things here and ahem, you know, I
              just want to make sure you understand your rights. Ahem, I
              can read them again to you . . .
              AMICK: No, I, I . . .
              DETECTIVE SJOGREN: . . . if there’s something that you
              don’t understand?
              AMICK: I understand them, I guess . . .
              ....
              DETECTIVE SJOGREN: Okay, so are you are you willing to
              talk with us? You kind a . . .
              AMICK: (Inaudible).
              DETECTIVE SJOGREN: . . . you kind of said something
              about a lawyer. I just want to clarify that you’re not asking for
              a lawyer . . . ?
              AMICK: Not at this second ‘cause I just try to answer what I
              know . . .
              DETECTIVE SJOGREN: Sure.
              SERGEANT SCHROEDER: Okay.
              AMICK: . . . and what I don’t remember, I mean I just, I can’t
              really, I don’t want to incriminate, you know, say stupid stuff
              that, ‘cause I’m already apparently in big trouble so.

Detective Sjogren then began his factual inquiry.

       We conclude that the district court’s finding that Amick was properly advised of

his Miranda rights, understood them, and waived his rights before giving the March 19,

2012 statement is not clearly erroneous. Although Amick made references to an attorney,

he also told the officers that he would “just try to answer what [he] kn[e]w.” “[A]

reasonable police officer, in the circumstances,” would not understand Amick’s words as

a request for an attorney. See Ortega, 798 N.W.2d at 71 (quotations omitted) (concluding

that “district court did not err when it held that appellant failed to unequivocally invoke

his right to counsel because a reasonable police officer under the[] circumstances would



                                             7
not understand appellant’s question to be a request for an attorney” (footnote omitted)).

Even if Amick made an equivocal request for counsel, Detective Sjogren and Sergeant

Schroeder did not violate the “stop and clarify” rule. The district court therefore properly

denied Amick’s suppression motion.

Voluntary-intoxication jury instruction

       Amick argues that the district court erred by denying his request for a voluntary-

intoxication jury instruction. Appellate courts “review a trial court’s refusal to issue a

requested instruction for abuse of discretion, focusing on whether the refusal resulted in

error.” State v. Torres, 632 N.W.2d 609, 616 (Minn. 2001). Voluntary intoxication is “a

consideration in determining whether the specific-intent element of a crime is met.” Id. at

615 n.2 (citing Minn. Stat. § 609.075 (2000)).

              [T]o receive a requested voluntary intoxication jury
              instruction: (1) the defendant must be charged with a specific-
              intent crime; (2) there must be evidence sufficient to support
              a jury finding, by a preponderance of the evidence, that the
              defendant was intoxicated; and (3) the defendant must offer
              intoxication as an explanation for his actions.

Id. at 616 (emphasis added). “A party must satisfy the burden of production before that

party is entitled to a voluntary intoxication jury instruction.” State v. Wilson, 830 N.W.2d

849, 854 (Minn. 2013). “When deciding whether an instruction is warranted, [appellate

courts], like the trial court, must view the evidence in the light most favorable to the

defendant.” Id. at 855 (quotation omitted).

       Here, without providing legal authority or analysis, Amick assumes that first-

degree assault (deadly force against peace officer) is a specific-intent crime, stating that



                                              8
“[t]he district court conceded[] that the . . . first-degree assault charges against appellant

were specific-intent crimes.” Indeed, the record reflects that the district court, the state,

and Amick proceeded on the assumption that first-degree assault (deadly force against

peace officer) is a specific-intent crime. And the state concedes the issue on appeal. We

are not bound by the state’s concession. See State v. Werner, 725 N.W.2d 767, 770 n.1

(Minn. App. 2007) (“While we generally accept a party’s concessions, we need not do so

when the party has made a concession on a threshold issue that presents a question of

law, particularly when we find fault with the district court’s analysis on the issue.”).

Appellate courts have the responsibility “to decide cases in accordance with law, and that

responsibility is not to be diluted by counsel’s oversights, lack of research, failure to

specify issues or to cite relevant authorities.” State v. Hannuksela, 452 N.W.2d 668, 673

n.7 (Minn. 1990) (quotation omitted)). But we need not decide whether first-degree

assault (deadly force against peace officer) is a specific-intent crime—or whether Amick

offered sufficient evidence to support a jury finding that he was intoxicated—because

Amick did not satisfy the third requirement for a voluntary-intoxication instruction.

       Amick did not satisfy the third requirement because he did not “offer intoxication

as an explanation for his actions.” See Torres, 632 N.W.2d at 616. Although Amick

argued to the district court that he was too intoxicated to form intent to commit the

specific-intent crimes with which he was charged, he neither presented evidence nor

made an offer of proof to support his argument. Compare id. at 616−17 (concluding that

district court acted within its discretion in determining that defendant did not offer

intoxication as explanation for his actions when defendant only referenced intoxication


                                              9
while lying about his involvement in crime and lucidly and precisely described to law

enforcement all crime participants’ actions, without referring to his intoxication), with

Wilson, 830 N.W.2d at 856 (concluding that defendant offered intoxication as

explanation for her actions when she “made an offer of proof to support her theory that

she was so intoxicated that she was unable to form intent” (quotation omitted)). Evidence

that Amick was possibly intoxicated around the time of the shooting is not equivalent to

evidence that his intoxication rendered him incapable of forming specific intent. See

Wilson, 830 N.W.2d at 856 (“[T]he mere fact of a person’s drinking does not create a

presumption of intoxication, and the possibility of intoxication does not create the

presumption that a person is incapable of forming a specific intent.” (quotation omitted)).

       Because Amick did not offer intoxication as an explanation for his actions, he was

not entitled to a voluntary-intoxication jury instruction. The district court did not abuse its

discretion by denying Amick’s request for such an instruction. And even if the court

erred by declining to instruct the jury on voluntary intoxication, the error was harmless in

light of the overwhelming evidence that Amick formed the specific intent to cause

Officer Robertson to fear immediate bodily harm or death when Amick discharged the

gun in Officer Robertson’s direction. See id. at 857–58 (reasoning that, “consider[ing] the

evidence presented at trial in its entirety, the only reasonable conclusion is that [the

defendant] acted with the [requisite] intent” and concluding “beyond a reasonable doubt

that the omission of the voluntary intoxication jury instruction did not significantly affect

the verdict”).




                                              10
Sufficiency of the evidence

       The jury found Amick guilty of first-degree assault (deadly force against Officer

Robertson). The elements of that offense are (1) assault of Officer Robertson, (2) “by

using or attempting to use deadly force against” Officer Robertson, (3) while Officer

Robertson “[wa]s engaged in the performance of a duty imposed by law, policy, or rule.”

See Minn. Stat. § 609.221, subd. 2(a). “Deadly force” includes “[t]he intentional

discharge of a firearm . . . in the direction of” Officer Robertson. See Minn. Stat.

§§ 609.066, subd. 1, .221, subd. 2(c)(2) (2010). The state presented direct evidence that

Amick discharged a firearm in Officer Robertson’s direction; it presented only

circumstantial evidence that Amick intentionally discharged the firearm. See State v.

Johnson, 719 N.W.2d 619, 630–31 (Minn. 2006) (“[I]ntent is a state of mind and is,

therefore, generally provable only by inferences drawn from a person’s words or actions

in light of all the surrounding circumstances.” (quotation omitted)).

       Amick argues that the circumstantial evidence is insufficient to prove that he

intentionally discharged the gun. “If a conviction, or a single element of a criminal

offense, is based solely on circumstantial evidence, such evidence, viewed as a whole,

must be consistent with guilt and inconsistent with any other rational hypothesis except

that of guilt.” State v. Fairbanks, 842 N.W.2d 297, 307 (Minn. 2014). We apply a two-

step analysis to determine whether circumstantial evidence is sufficient to support a

guilty verdict. State v. Anderson, 784 N.W.2d 320, 329−30 (Minn. 2010). We first

identify the circumstances proved and then “examine independently the reasonableness of

the inferences that might be drawn from the circumstances proved.” State v. Moore, 846


                                            11
N.W.2d 83, 88 (Minn. 2014) (quotations omitted). “In identifying the circumstances

proved, we assume that the jury resolved any factual disputes in a manner that is

consistent with the jury’s verdict.” Anderson, 784 N.W.2d at 329. We “construe

conflicting evidence in the light most favorable to the verdict and assume that the jury

believed the State’s witnesses and disbelieved the defense witnesses.” Moore, 846

N.W.2d at 88. “A jury is in the best position to evaluate circumstantial evidence, and its

verdict is entitled to due deference.” Fairbanks, 842 N.W.2d at 307. But “[w]e give no

deference to the fact finder’s choice between reasonable inferences.” State v. Silvernail,

831 N.W.2d 594, 599 (Minn. 2013) (quotations omitted).

       Amick argues that the circumstances proved are consistent with a rational

hypothesis that, when he discharged the gun in the direction of Officer Robertson, he

neither had a purpose to discharge the gun nor believed that his actions would cause the

gun to discharge. See Minn. Stat. § 609.02, subd. 9(3) (2010) (“‘Intentionally’ means that

the actor either has a purpose to do the thing or cause the result specified or believes that

the act performed by the actor, if successful, will cause that result.”) Construing

conflicting evidence in the light most favorable to the convictions, the circumstances

proved include:

                     (1) After Officer Robertson commanded Amick to put
              up his hands, Amick yelled, “F-ck you,” and extended one of
              his hands out of the suspect car’s window.

                     (2) A gun was in the hand that Amick extended out of
              the window.

                     (3) The gun in Amick’s hand was “aimed directly” at
              Officer Robertson before it was discharged.


                                             12
                        (4) Amick discharged the gun twice.

                       (5) The gun in Amick’s hand was still “aimed directly”
                at Officer Robertson after it was discharged.

                       (6) After Officer Bohrer commanded Amick to drop
                the gun, Amick yelled, “Fine,” and threw the gun.

                        (7) Amick immediately fled the scene of the shooting
                at a high rate of speed and drove “craz[il]y” while “screaming
                and letting go of the wheel, saying, ‘What have I done? What
                have I done?’”

                        (8) Amick asked M.S. to call his son’s mother.

                      (9) Amick drove to his mother’s home, went inside,
                and “yell[ed] to his mom, ‘I messed up bad. This time I
                messed up bad.’”

                        (10) Amick hid in the woods behind his mother’s
                home.

The circumstances proved are consistent with Amick’s guilt because they permit a

rational inference that when he discharged the gun in Officer Robertson’s direction, he

either had a purpose to discharge the gun or believed that his actions would cause the gun

to discharge.

       Furthermore, the circumstances proved are not consistent with any rational

hypothesis except that of Amick’s guilt. When confronted by Officer Robertson, Amick

moved the gun from inside the car to outside the car, held the gun in such a way that the

muzzle was facing Officer Robertson, and yelled a threatening expletive before he twice

discharged the gun in Officer Robertson’s direction. After Amick discharged the gun, he

fled, hid, and made multiple statements that exhibited consciousness of guilt. The



                                              13
circumstances proved are inconsistent with any rational hypothesis that, when he

discharged the gun in the direction of Officer Robertson, he neither had a purpose to

discharge the gun nor believed that his actions would cause the gun to discharge. The

evidence therefore is sufficient to support Amick’s conviction of first-degree assault.

Upward-departure sentence

       The permissive sentencing range for Amick’s conviction of first-degree assault

(deadly force against peace officer) is 120 to 160 months’ imprisonment, and the

mandatory sentence for his conviction of possession of a firearm by an ineligible person

(prior crime of violence) is 60 months’ imprisonment. See Minn. Stat. §§ 609.035, subd.

3, .11, subd. 5(b), .221, subd. 2(b) (2010); State v. Williams, 771 N.W.2d 514, 522, 524

(Minn. 2009); Minn. Sent. Guidelines II.B.1, IV, V (2010). Concurrent sentencing for

these two offenses is presumptive, and consecutive sentencing is not permissive. See

Minn. Sent. Guidelines II.F (providing that “[g]enerally, when an offender is convicted of

multiple current offenses, . . . concurrent sentencing is presumptive”), VI (listing first-

degree assault, but not possession of a firearm by an ineligible person, as an offense that

is eligible for permissive consecutive sentencing) (2010). The district court therefore

departed from the guidelines by sentencing Amick to a 60-month consecutive sentence

for possession of a firearm by an ineligible person. See Minn. Sent. Guidelines II.F

(stating that “use of consecutive sentences in any . . . case [in which consecutive

sentencing is neither presumptive nor permissive] constitutes a departure”). Amick

argues that the district court abused its discretion by imposing an upward-departure

sentence in the form of consecutive sentencing.


                                            14
         “[Appellate courts] afford the trial court great discretion in the imposition of

sentences and reverse sentencing decisions only for an abuse of that discretion.” State v.

Soto, 855 N.W.2d 303, 307–08 (Minn. 2014) (quotation omitted). But “a sentencing court

can exercise its discretion to depart from the [sentencing] guidelines only if aggravating

or mitigating circumstances are present, and those circumstances provide a substantial

and compelling reason not to impose a guidelines sentence.” Id. at 308 (quotations and

citations omitted); see also Minn. Sent. Guidelines II.D (2010) (providing that “in

exercising the discretion to depart from a presumptive sentence, the judge must disclose

in writing or on the record the particular substantial and compelling circumstances that

make the departure more appropriate than the presumptive sentence”). “[A]bsent a

statement of the reasons for the sentencing departure placed on the record at the time of

sentencing, no departure will be allowed.” State v. Geller, 665 N.W.2d 514, 517 (Minn.

2003).

         Here, the district court sentenced Amick to “60 months consecutive on the felon in

possession of a gun,” noting the circumstances surrounding Amick’s commission of the

first-degree assault and the fact that he was on probation and stating that “they’re all very

good reasons to do a policy departure on that.” (Emphasis added.) The court apparently

based its sentence on inaccurate information provided by the probation officer who

completed the presentence-investigation report and by the prosecutor. The presentence-

investigation report states that “the Court has the option to sentence the offenses

consecutively without aggravating factors being present,” claiming that an unidentified

person at the Minnesota Sentencing Guidelines Commission said that “consecutive


                                             15
sentences for presumptive prison commitment offenses are not governed by the Blakely

ruling and are considered only a ‘Policy Departure.’” And the prosecutor, in asking for

consecutive sentencing, stated, “This is a policy departure from the guidelines, but I think

there are plenty of reasons for the Court to do that in this case, and I will outline those.”

(Emphasis added.) The prosecutor then argued, without identifying a valid aggravating

factor, “that [Amick] hasn’t taken responsibility for this offense and that he is not

amenable in any way to probation”; criticized Amick for providing “conflicting

information in previous PSIs regarding his family history, his explanations for his

truancy, his lack of success in school, his chemical abuse”; noted that Amick has “several

prior incidents of assaultive behavior against other people” for which he was not

convicted and that are not included in his “criminal record”; and noted that Amick had

been unemployed for several years, drinks daily, “recently bingeing on weekends,” and

was not paying child support.

       Even if the prosecutor had identified a valid aggravating factor and facts to

support it, under the U.S. Supreme Court’s decision in Blakely v. Washington, 542 U.S.

296, 303–04, 124 S. Ct. 2531, 2537 (2004), “other than a prior conviction, any fact that

increases the sentence for a crime beyond the presumptive sentence established by the

Minnesota Sentencing Guidelines for a particular crime must be submitted to the jury and

proven beyond a reasonable doubt.” Vickla v. State, 793 N.W.2d 265, 269 (Minn. 2011).

Blakely requires a district court to “submit to a jury the question of whether the State has

proven beyond a reasonable doubt the existence of additional facts, which were neither

admitted by the defendant, nor necessary to prove the elements of the offense, but which


                                             16
support reasons for departure.” State v. Rourke, 773 N.W.2d 913, 921 (Minn. 2009).

Amick did not waive his Blakely right to a jury determination of facts supporting an

upward-departure sentence.

       Because the district court did not identify any valid aggravating factors at the time

of Amick’s sentencing, the court abused its discretion by imposing an upward-departure

sentence.1 We conclude that the proper remedy is to reverse Amick’s upward-departure

sentence and remand for imposition of the presumptive sentence or, unless waived by

Amick, the empanelling of a resentencing jury to determine the existence of facts in

support of legitimate aggravating factors for upward-departure sentencing. See State v.

Jackson, 749 N.W.2d 353, 358 (Minn. 2008) (ordering same remedy).

Pro se claims

       Amick raises several additional claims in his pro se supplemental brief. He argues

that the district court imposed excessive bail and abused its discretion by not instructing

the jury on reckless discharge of a firearm. He also argues that he received ineffective

assistance of counsel, that the state committed prosecutorial misconduct, and that the

district court judge was biased against him. These claims are arguably waived for lack of

briefing. See State v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006) (stating that

“assignment of error in a brief based on mere assertion and not supported by argument or

authority is waived unless prejudicial error is obvious on mere inspection” (quotation

1
  The district court also erred in its calculation of the duration of Amick’s sentence by
using a criminal-history score of three for first-degree assault and a criminal-history score
of five for possession of a firearm by an ineligible person. See State v. Holmes, 719
N.W.2d 904, 908 (Minn. 2006) (“If a consecutive sentence is permissive or a departure, a
criminal history score of zero is assigned to determine the duration of the sentence.”).

                                             17
omitted)), aff’d, 728 N.W.2d 243 (Minn. 2007). We have nonetheless thoroughly

reviewed Amick’s claims and conclude that none presents a basis for relief. See Ture v.

State, 681 N.W.2d 9, 20 (Minn. 2004) (rejecting pro se arguments without detailing

consideration of each argument).

      Affirmed in part, reversed in part, and remanded.




                                          18
