State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0430

State of Minnesota,
Respondent,

vs.

Brandon Christopher Bush,
Appellant.

Filed March 13, 2017
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge

Clay County District Court
File No. 14-CR-15-282

Lori Swanson, Attorney Gene ral, Edwin W. Stockmeyer, A ssistant Attorney General,
St. Paul, Minnesota; and

Brian J. Melton, Clay County Attorney, Moorehead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Stauber, Judge; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Brandon Christopher Bush challenges the district court’s jury instruction
concerning the charge of attempted second-d egree intentional murder and its upward
sentencing departure. We affirm in part, reverse in part, and remand for resentencing.

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FACTS
On January 22, 2015, R.B. wa s hospitalized after being stabbed in his face, chest,
and left arm. At the hospital, R.B. reported to police that appellant stabbed him at the home
of R.C., appellant’s ex-girlfriend. Police arrested appellant and charged him with one count
of attempted second-degree intentional murder, one count of second-degree assault with a
dangerous weapon, four counts of kidnapping, two counts of terroristic threats, and two
counts of first-degree burglary. The charge of second-degree assa ult with a dangerous
weapon was dismissed by the state during the course of the trial. The remaining nine counts
were tried to a jury.
R.B. testified that he went to R.C.’s trailer on the evening of January 21, 2015, fell
asleep in bed with R.C., and woke to appellant standing over him with a knife. R.B.
testified that appellant then stabbed him in th e face. R.B. sustained further cuts when he
struggled with appellant to stop the stabbing . Even after appellant stopped stabbing him,
he remained at R.C.’s trailer and would not le t either R.B. or R.C. leave for one to two
hours. Appellant finally left, and R.B. went to the hospital.
R.C. testified at trial that appellant was her former boyfriend, and that he is the father
of her child. R.C.’s testimony regarding the attack was similar to R.B.’s description, stating
that, when she woke up, appellant was on top of R.B., stabbing him with a knife.
At trial, the state introduced an audio re cording of an interview between appellant
and police, during which appella nt admitted he “cut” R.B. bu t claimed it was in self-
defense. Appellant did not testify and called no witnesses at trial.

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Before closing arguments, the district cour t judge discussed jury instructions with
the attorneys. During these discussions, appe llant did not object to either the proposed
instruction concerning attempted second-degree intentional murder or the portion of the
instruction concerning the requirement that appellant must have taken a “substantial step”
toward the offense to support a guilty verdict on that count. The jury found appellant guilty
of all counts.
This appeal followed.
D E C I S I O N
I. Jury instructions
Appellant argues that the district court pl ainly erred when it in structed the jury on
the charge of attempted second-degree intentional murder. Specifically, he argues that the
district court erred by omitting the requirement that he must have taken a “substantial step”
toward the commission of the crime in order to be guilty of that charge. Appellant also
argues that the instructions did not adequately identify the intent element.
The district court instructed the jury as follows:
This matter has been brought under the statutes of
Minnesota which defines the offense, Count 1, attempted
murder in the second degree, w ith intent, not premeditated.
The statutes of Minnesota provide that a person is guilty of an
attempt to commit a crime when , with intent to commit the
crime, the person does an act that is a substantial step toward,
and more than mere preparation for, the commission of the
crime. An attempt to commit a crime requires both an intent
to commit the crime and a su bstantial step towards the
commission of the crime.

In determining whether a substantial step has been
taken, you must distinguish between mere preparation for and
actually beginning to commit the criminal act. Mere

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preparation, which may consist of planning the offense or of
obtaining or arranging the means for its commission, is not
sufficient to constitute an atte mpt. An act by a person who
intends to commit a crime is an attempt if the act itself clearly
indicates the intent to commit th at specific crime and it tends
directly to accomplish the crime. The act itself need not be
criminal in nature.

The statutes of Minnesota provide that whoever, with
intent to cause the death of that person or another, but without
premeditation, causes the death of a human being is guilty of a
crime.

. . . [T]he elements of atte mpted murder in the second
degree, with intent, not premeditated are:

First, the defendant attemp ted to cause the death of
[R.B.].

Second, the defendant acted with the intent to kill
[R.B.]. To find the defendant ha d an intent to kill, you must
find that the defendant acted with the purpose of causing death
or believed that the act would have that result. Intent, being a
process of the mind, is not always susceptible to proof by direct
evidence but may be inferred from all the circumstances
surrounding the event.

Third, the defendant’s act took place on or about
January 22, 2015, in Clay County.

Appellant did not object to any part of this instruction.

“We review a district court’s jury instructions for an abuse of discretion,” and give
the district court “considerable latitude in selecting jury instructions.” State v. Peltier, 874
N.W.2d 792, 797 (Minn. 2016). A district court does not a buse its discretion when jury
instructions “fairly and adequately explain th e law” and properly instruct the jury on all
elements of the offense charged. Id. “[I]t is desirable for the court to explain the elements
of the offense rather than simply to read statutes.” State v. Kuhnau, 622 N.W.2d 552, 556

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(Minn. 2001). When reviewing ju ry instructions, “the court’s charge to the jury must be
read as a whole, and if, when so read, it corr ectly states the law in language that can be
understood by the jury, there is no reversible error.” State v. Peou, 579 N.W.2d 471, 475
(Minn. 1998).
We review unobjected-to jury instructions for plain error. State v. Milton , 821
N.W.2d 789, 805 (Minn. 2012); State v. White, 684 N.W.2d 500, 508 (Minn. 2004). When
deciding if there was plain e rror, we analyze “whether the ju ry instructions contained an
(1) error (2) that was plain and (3) that affected the defendant’s substantial rights.” Milton,
821 N.W.2d at 805. An error is plain if it is clear and obvious at the time of appeal. State
v. Little, 851 N.W.2d 878, 884 (Minn. 2014) (quotation omitted).
Appellant argues that the district court erred by deviating from the Minnesota Jury
Instruction Guides—Criminal (CRIMJIG) instructions for attempted murder. Concerning
the definition of attempt, th e CRIMJIG recommends that the district court instruct as
follows:
Under Minnesota law, a person is guilty of an attempt
to commit a crime when, with in tent to commit the crime, the
person does an act that is a s ubstantial step toward, and more
than mere preparation for, the commission of the crime.

An attempt to commit a crime requires both an intent to
commit the crime and a substantial step toward the commission
of the crime.

In determining whether a substantial step has been
taken, you must distinguish between mere preparation for and
actually beginning to commit the criminal act on the other.
Mere preparation, which may c onsist of planning the offense
or of obtaining or arranging th e means for its commission, is
not sufficient to constitute an attempt. An act by a person who
intends to commit a crime is an attempt if the act itself clearly

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indicates the intent to commit that specific crime, and it tends
directly to accomplish the crime. The act itself need not be
criminal in nature.

The statutes of Minnesota de fine the crime of [insert
crime] as follows: [insert appropriate CRIMJIG section].

The elements of a completed crime of [insert crime] are:
[Insert appropriate elements section of CRIMJIG].

10 Minnesota Practice, CRIMJIG 5.01 (2015); see also 10 Minnesota Practice, CRIMJIG
5.02 (2015) (providing elemen ts of “attempt”). Appellant argues that the district court
failed to correctly define “intent” and om itted the requirement th at the state prove a
“substantial step” toward commission of the crime.
We first observe that the district court’ s instructions largel y complied with the
CRIMJIG instruction. A district court may deviate from the patterned instructions, but it
abuses its discretion when it gives jury instruc tions that are either unclear or relieve the
state of its burden to prove an element of the crime. State v. Mahkuk, 736 N.W.2d 675,
682-83 (Minn. 2007) (finding error when the hybrid jury instructions “allowed the jury to
find [the defendant] guilty if it found that [he] was intentionally present at the scene of the
crime without also finding that it was [his] in tent that his presence aid or encourage the
commission of the crime” and that as a result, “the instruction relieved the state of its
burden to prove that [the defendant] intended his presence to further the commission of the
crime”). An appellant must show that “the substituted instruction contained a material
misstatement of law when r ead in the context of the instructions as a whole.” State v.
Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980).

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Second-degree intentional murder has two elements: (1) causing the death of a
human being and (2) intent to effect the death of that person or another, without
premeditation. Minn. Stat. § 609.19, subd. 1(1) (2014). Because attempt requires the same
intent element as the predicate offense, attempted second-degr ee intentional murder
requires both (1) an intent to effect the deat h of a person and (2) a substantial step taken
towards causing the death.
The district court instructed the jury on the elements of attempted second-degree
intentional murder, by first defining an attempt. “Whoever, with intent to commit a crime,
does an act which is a substantial step to ward, and more than preparation for, the
commission of the crime is guilty of an attemp t to commit that crime . . . .” Minn. Stat.
§ 609.17, subd. 1 (2014). The required elements of an attempt are “(1) an intent to commit
a crime, and (2) a substantial step taken toward the crime’s commission.” State v. Olkon,
299 N.W.2d 89, 104 (Minn. 1980). The district court then provided an elemental definition
of second-degree intentional murder, defined by statute as causing “the death of a human
being with intent to effect the death of that person or another, but without premeditation.”
Minn. Stat. § 609.19, subd. 1(1).
The district court’s instruction accurately defined “attempt” as including “both an
intent to commit the crime and a substantial step towards th e commission of the crime.”
Then, the district court defined the elemen ts of attempted seco nd-degree intentional
murder, including the element that “the defenda nt acted with the inte nt to kill [R.B.].”
Having previously defined “atte mpt” as including both intent to commit a crime and a

8
substantial step towards its commission, the jury was instructed that proof of a substantial
step toward commission of the crime was necessary to prove the offense.
The Minnesota Supreme Court has held that this method of providing jury
instructions—defining a term and then using the term in the elements of the crime—is not
error when the district court instructs the jury to use the definitions provided. Gulbertson
v. State, 843 N.W.2d 240, 248 (Minn. 2014). He re, the district court defined the term
“attempt”—including the requirement of a substantial step—immediately before using
“attempt” in the elements of the crime. Considering the us e of the same word twice in
close succession, the district court acted within its “considerable latitude” in instructing the
jury on both the intent and the substantial-step elements of the attempted crime. State v.
Gatson, 801 N.W.2d 134, 147 (Minn. 2011).
The district court’s jury instructions conformed to Minnesota law concerning
attempted crimes. Because the district court’s jury instructions accurately state the law, it
matters not that the instructions do not precisely follow the CRIMJIG pattern. The district
court did not err.
II. Sentencing
Appellant also argues that the district court erred when it sentenced him on count 8,
kidnapping to facilitate felony or flight u nder Minn. Stat. § 609.25, subd. 1(2) (2014).
Respondent agrees.
“[I]nterpretation of the sentencing guidelines are subject to de novo review.” State
v. Campbell, 814 N.W.2d 1, 4 (Minn. 2012).

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Under Minnesota law, kidnapping may be se ntenced at severity level 6, 8, or 9,
depending on the facts of the case. It is ordinarily a severity level 6 offense “if the victim
is released in a safe place without great bodi ly harm.” Minn. Stat . § 609.25, subd. 2(1)
(2014); Minn. Sent. Guidelines 5.A (2015). It is a severity level 8 or 9 offense “if the
victim is not released in a safe place, or if the victim suffers great bodily harm during the
course of the kidnapping, or if the person kidnapped is under the age of 16.” Minn. Stat.
§ 609.25, subd. 2(2) (2014); Minn. Sent. Guidelines 5.A.
Here the verdict form did not include a special interrogatory regarding section
609.25, subd. 2(2), the factors that would justify sentencing appellant for a severity level 9
offense. The district court sentenced appellant without identifying any reason for applying
the higher severity level. As the state concedes, the district court should have sentenced
appellant under Minn. Stat. § 609.25, subd. 2(1), a severity level of 6. We therefore reverse
the district court’s sentence on count 8, and remand for resentencing at a severity level of
6. See State v. Rannow , 703 N.W.2d 575, 580 (Minn. Ap p. 2005) (stating that when no
reasons are given for departure, it is clear that the remand is for the presumptive sentence
and not an opportunity to state reasons for departure).
Affirmed in part, reversed in part, and remanded.