Special Interrogatory Should Have Been Given to Jury on Aggravating Factor of Possession of Firearm While Committing a 609.11 Subd. 5(a) Offense But Error Was Harmless

State v. Essex, Minn.Ct.App., 11/4/2013.  On his first day as chief judge of the court of appeals Judge Cleary hands down this opinion that examines two evidence sufficiency claims and a Blakely error.  Mr. Essex was drinking at his local bar; after the fifth or so “strong alcoholic” drink, he got “loud and boisterous.”  The bartender thought he’d had enough, gave him his bar tab and told him to hit the road.  Mr. Essex stormed out of the bar, then he banged on the large front window, apparently to get the bartender’s attention.  Which it did, because she testified that she then saw Mr. Essex point at her head as though he had a gun and say “boom, boom” before leaving.

Only to return later after closing.  Being a regular and all, the bartender testified that Mr. Essex knew that she was usually alone at closing time.  Instead, the bar’s owner’s son was helping out.  Mr. Essex now had a holster with a gun partway out of it.  The owner’s son went out to greet Mr. Essex.  When the bartender yelled to the owner’s son that Mr. Essex had a gun, the owner’s son grabbed Mr. Essex’s arms.  The bartender then grabbed the gun and took it inside the bar.

The state charged Mr. Essex with attempted second degree assault and with possessing a firearm in a public place while under the influence of alcohol.  (There were some other charges but the jury acquitted Mr. Essex of them.)  The jury convicted him of these two charges.  The trial court imposed an executed sentence of one year and a day, under the provision of Minn.Stat. 609.11, subd. 5(a).  This statute says that if a defendant possesses, uses or otherwise employs a firearm in committing a bunch of listed offenses (including attempted second degree assault) the presumptive sentence is commitment to prison.

The court makes fairly short work of the two evidence sufficiency claims.  Returning to the bar after hours, strapped with a firearm, along with all her other behavior, established both that Mr. Essex had the intent to commit second degree assault and that he took a “substantial step” toward committing that offense.  The possession of a firearm in a public place while under the influence of alcohol is a bit closer call when you know that Mr. Essex had a concussion.  The court rather glibly rejects the claim that the behaviors that Mr. Essex exhibited – slurred speech, bloodshot and watery eyes, poor balance – could have been caused by the head injury rather than intoxication. 

On the sentencing issue, the court says that the trial court should have submitted a special interrogatory to the jury on the aggravating factor of possession, etc. of a firearm while committing attempted second degree assault.  This error, the court concludes, was harmless error.