Trial Court Had Proper Grounds to Support Upward Durational Departure

State v. Weaver, Minn.Ct.App., 5/3/2011.  Mr. Weaver has twice – once by jury, once by judge – been convicted of unintentional murder - killing his wife in the laundry room of their home - and then setting fire to the house to disguise the homicide.  The parties disputed the cause of death; the state said that the wife died from carbon monoxide inhalation during the fire, but the defense said it could not be determined whether death had been from her head injury or from carbon monoxide.  The judge sided with the state, finding that she had died from inhalation of carbon monoxide.  The judge also found that the wife would have survived the head injury had she received medical assistance and that Mr. Weaver believed that the wife was dead when he lit the fire.  The court denied Mr. Weaver’s request for a downward durational departure, and imposed an upward departure of half again what the Guidelines called for on the basis of particular cruelty.

There were two actions that the trial court said supported a departure based on particular cruelty.  First, Mr. Weaver failed to summon aid that could have saved his wife’s life.  Second, instead of calling for help he set the fire in an effort to destroy evidence, especially his wife’s body.  Mr. Weaver challenged both of these assertions.

Failure to render aid:  This cannot be an aggravating factor in an intentional homicide.  State v. Robideau, 783 N.W.2d 390 (Minn.Ct.App. 2010), rev’d on other grounds, __ N.W.2d __ (Minn. Mar. 23, 2011).  The appellate court ducks the question whether such failure can be a permissible departure reason in an unintentional homicide because it likes other reasons better to support this departure.

Like torching the wife’s body.  Almost twenty-five years ago the court of appeals upheld a sentencing departure based on a defendant’s torching of his victim, even though he believed that the victim was dead.  State v. Direcks, 412 N.W.2d 765 (Minn.Ct.App., 1987).  Mr. Weaver objected to this reasoning, arguing that torching the body was either part of the arson or uncharged conduct (Concealment, Minn.Stat. 609.502.)  Arson, however, is an exception to the cumulative punishment prohibition of 609.035 and so the arson can be both the underlying offense of the felony murder and a basis for departure.  State v. Jones, 745 N.W.2d 845, 849 (Minn. 2008). 

The appellate court also thought that because the wife suffered multiple injuries, inflicted by two different methods – assault and fire – the departure was proper.  Finally, the appellate court upholds the trial court’s denial of his departure motion.  He had asked the trial court for a presumptive sentence equal to what that sentence had been before a legislative change back in 1989, which Mr. Weaver argued had been made for political reasons rather than empirical research.  The appellate court declines to hold that disagreement with a particular guideline is a proper basis for a departure.