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This opinion will be unpublished and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
A16-1198

State of Minnesota,
Respondent,

vs.

Steven Michael Gutierrez,
Appellant.

Filed September 5, 2017
Affirmed
Peterson, Judge

Ramsey County District Court
File No. 62-CR-15-5966

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

John Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief A ppellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Connolly, Judge.

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U N P U B L I S H E D O P I N I O N
PETERSON, Judge
Appellant argues that the evidence is insufficient to support his convictions of
attempted first - and second -degree murder and the upward durational departure in his
sentence for attempted first-degree murder. We affirm.
FACTS
On the night of July 31, 2015, appellant Steven Michael Gutierrez argu ed with his
girlfriend, J.K., in their home. J .K.’s adult brother, T.M., also was present in the home .
The argument escalated to a hostile breakup, and Gutierrez grabbed some of his belongings
and left in his work van after scattering on the floor the cremated remains of J.K.’s pet
rabbit.
About an hour later, Gutierrez reentered the home and led J.K. out the back door.
Gutierrez expressed a desire to reconcile with J.K., but J.K. told Gutierrez to leave. When
J.K. tried to go back inside , Gutierrez “lunged” at her and “tackled” her to the ground.
T.M. ran outside and jumped on Gutierrez. During the struggle, Gutierrez put his hands to
J.K.’s neck, and J.K. felt a “tug” on the right side of her neck. Gutierrez then got up and
ran away.
Blood began “squirt[ing]” from a wound in J.K.’s neck. T.M. called 911, and J.K.
went inside, lay on the floor , and held a towel to her neck. When police and paramedics
arrived, they found J.K. lying in a large pool of blood with a “gaping” neck wound. J.K.
was taken by ambulance to a hospital, where she received emergency surgery to repair a
life-threatening “slash” to her neck about 12 centimeters long and 5 centimeters wide.

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Neither J.K. nor T.M. saw Gutierrez with a weapon that night. Police later found in
Gutierrez’s work van a box of razor blades with one blade missing. J.K.’s trauma surgeon
opined that her neck wound was “most consistent” with a wound caused by a “sharp blade,”
such as a razor blade, and involved “an excessive amount of force.” Because of the wound,
J.K. has a scar that extends from the base of her hairline behind her right ear to the center
of her throat, and her voice is deeper and raspier than it was before the attack.
Respondent State of Minnesota charged Gutierrez with attempted first -degree
murder (premeditated), attempted second -degree murder (intentional), and first -degree
assault (great bodily harm). After a five -day trial, a jury found Gutierrez guilty of the
charged offenses and of the lesser included offense of fifth-degree assault (harm). The jury
also found by special verdict that (1) Gutierrez’s weight exceeded J.K.’s weight by more
than 100 pounds on July 31, 2015; (2) J.K. was pregnant on July 31, 2015; (3) Gutierrez
was aware, on July 31, 2015, that J.K. was pregnant; (4) J.K. suffered a “ permanent
disfigurement” as a result of the attack ; and (5) J.K. suffered a “ permanent injury” as a
result of the attack. The district court sentenced Gutierrez to 240 months in prison for
attempted first-degree murder, an upward durational departure , based on the aggravating
factors of J.K.’s particular vulnerability and the particular cruelty with which Gutierrez
committed the offense.
D E C I S I O N
I.
“When the direct evidence of guilt on a particular element is not alone sufficient to
sustain the verdict ,” appellate courts apply a heightened two -step standard of review.

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Loving v. State , 891 N.W.2d 638, 643 (Minn. 2017) . In the first step, appellate courts
“identify the circumstances proved by the State,” deferring to “the jury’s acceptance of the
State’s evidence and its rejection of any evidence in the record that is inconsistent with the
circumstances proved by the State. ” Id. The first step “ requires an ap pellate court to
winnow down the evidence presented at trial by resolving all questions of fact in favor of
the jury’s verdict, resulting in a subset of facts that constitute ‘the circumstances proved.’”
State v. Harris, 895 N.W.2d 592, 600 (Minn. 2017). In the second step, appellate courts
independently determine “whether a reasonable inference of guilt can be drawn from the
circumstances proved, viewed as a whole, and whether a reasonable inference inconsistent
with guilt can be drawn from the circumstances proved, again viewed as a whole.” Id. “To
sustain the conviction, the circumstances proved, when viewed as a whole, must be
consistent with a reasonable inference that the accused is guilty and inconsistent with any
rational hypothesis except that of guilt.” Id. at 601.
Gutierrez contests his convictions of attempted first - and second -degree murder,
arguing that the evidence was insufficient to prove intent to kill and premeditation beyond
a reasonable doubt. A person is guilty of attempted first-degree murder (premeditated) if
he (1) intends to cause the death of another person; (2) engages in premeditation regarding
a murderous act toward that person ; and (3) takes a substantial step , beyond mere
preparation, toward causing the death of tha t person . Minn. Stat. §§ 609.17, subd. 1,
.185(a)(1) (2014). A person is guilty of attempted second -degree murder (intentional) if
he (1) intends to cause the death of another person; and (2) takes a substantial step, beyond

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mere preparation, toward causing the death of that person. Minn. Stat. §§ 609.17, subd. 1,
.19, subd. 1(1) (2014).
A person acts with intent to kill if he “either has a purpose to . . . cause the result”
of another person’s death “or believes that the act, if successful, will cause that result.” See
Minn. Stat. § 609.02, subd. 9(4) (2014) (defining mental states, including “[w]ith intent
to”). “Intent may be inferred from events occurring before and after the crime and may be
proved by circumstantial evidence.” State v. Rhodes, 657 N.W.2d 823, 840 (Minn. 2003).
Also, “[i]ntent can be inferred from the idea that a person intends the natural consequences
of his or her actions. ” Nelson v. State , 880 N.W.2d 852, 860 (Minn. 2016) (quotation
omitted). And “[i]ntent to cause death can be inferred fro m the nature and extent of the
victim’s wounds and the defendant’ s failure to aid the victim after an assault. ” Id.
(quotation omitted).
The following circumstances were proved at trial. Soon after a heated argument
that culminated in a breakup, Gutierrez physically led J.K. out of their home at night, away
from T.M., and against her stated wishes. When J.K. rebuffed Gutierrez’s attempts to
“work it out” and tried to go back inside, Gutierrez lunged at her and tackled her to the
ground. As Gutierrez and J.K. “w restled” on the ground and T.M. joined in the fray ,
Gutierrez used a sharp blade and an “excessive amount of force” to make a sing le, deep
gash to J.K.’s neck, about 12 centimeters long and about 5 centimeters wide . Then
Gutierrez got up and ran away.
The wound to J.K.’s neck was life -threatening: her external and internal jugular
veins and vertebral artery were transected, and she lost a great deal of blood. By the time

6
she was rushed into emergency surgery, she was near death. Though J.K. ultimately
survived Gutierrez’s attack, she has a permanent scar from the base of her hairline behind
her right ear to the center of her throa t, and her voice is deeper and raspier than it was
before the attack.
A reasonable inference that Gutierrez intended to kill J.K. can be drawn from the
circumstances proved, viewed as a whole . J.K. rejected Gutierrez’s attempts to reconcile
and told him t o leave the home that they shared mere hours before. He physically
overpowered her and forcefully slashed her throat with a sharp blade. The natural and
probable consequence of that act is J.K.’s death, which certainly would have occurred
absent medical intervention. And Gutierrez fled immediately after wounding J.K. instead
of trying to save her. See State v. Mills, 290 N.W.2d 616, 617 (Minn. 1980) (considering
evidence that defendant tried to flee among evidence of defendant’s guilt).
No reasonable inference that Gutierrez did not intend to kill J.K. can be drawn from
the totality of the circumstances proved. In support of his argument that “[t]he
circumstances proved by the state are not inconsistent with the alternative, rational
hypothesis that Gut ierrez did not subjectively intend to kill [J.K.] but only intended to
assault her,” Gutierrez selectively chooses from the circumstances proved, viewing facts
in isolation and distinguishing the facts in this case from the facts in caselaw that found the
evidence sufficient to support an inference of intent to kill. For instance, Gutierrez cites
cases that found an inference of intent to kill sufficiently supported by the defendant’s
failure to aid a wounded victim and notes that in his case, “Gutierrez fled but did not leave
[J.K.] without assistance,” because T.M. was present. Gutierrez also cites cases that found

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an inference of intent to kill sufficiently supported by the defendant’s infliction of multiple
wounds on a victim and points out that J.K. had a “single wound.”
We reject Gutierrez’s attempts to focus on particular details while ignoring the
broader picture. See State v. Robertson, 884 N.W.2d 864, 872 (Minn. 2016) (stating that
“[w]hen viewed in isolation, the facts cited by [the defendant] might support a rational
inference other than guilt. But we view the circumstances proved as a whole. ”). We
conclude that the circumstances proved , viewed as a whole, are inconsistent with any
rational hypothesis except that Gutierrez intended to kill J.K. Sufficient evidence supports
Gutierrez’s conviction of attempted second-degree murder, and sufficient evidence
supports the intent element of Gutierrez’s conviction of attempted first-degree murder.
A person engages in premeditation regarding an act if he “consider[s], plan[s] or
prepare[s] for, or determine[s] to commit, the act . . . prior to its commission.” Minn. Stat.
§ 609.18 (2014). To prove that a defendant engaged in premeditation regarding a
murderous act, “the State must prove that . . . after the defendant formed the intent to kill,
some appreciable time passed during which the consideration, planning, p reparation or
determination prior to the commission of the act took place.” Loving, 891 N.W.2d at 644
(quotation omitted). Like intent, premeditation may be proved by circumstantial evidence
and may be inferred from evidence regarding “ the actions taken by the defe ndant before
and after the crime,” including evidence of “planning activity, motive, and the nature of
the killing.” Id. at 643-44.
“Planning activity consists of facts about how and what the defendant did prior to
the actual killing which show he was engaged in activity directed toward the killing.” State

8
v. Palmer, 803 N.W.2d 727, 734 (Minn. 2011) (quotation omitted). “Planning activity may
consist of prior possession of the murder weapon by the defendant, sneaking up on the
prospective victim, or taking the prospective victim to a location where others are unlikely
to intrude.” Id. (quotation omitted). Motive to kill, as relevant to premeditation, may exist
due to the deterioration or end of the defendant’s relationship with the victim or the
defendant’s serious argument with the victim. State v. Moore, 846 N.W.2d 83, 89 (Minn.
2014). And the nature of the killing may indicate premeditation where the defendant
deliberately places a wound on a vital part of the victim’s body. State v. Ortega, 813
N.W.2d 86, 101 (Minn. 2012).
The following circumstances were proved in this case. As Gutierrez and J.K. argued
and ended th eir relationship, Gutierrez gathered some of his belongings, scattered the
remains of J.K.’s beloved pet on the floor, and left in his work van, which contained a box
of razor blades. Shortly after Gutierrez left, he sent a text message to T.M. that said, “Tell
her to come talk to me.” J.K. immediately responded with a text message that contained
an expletive-backed refusal. About an h our later, Gutierrez re entered the home without
knocking and asked J.K. to go outside and talk. When J.K. refused, Gutierrez took her by
the arm, led her outside, and “persisted on talking.” J.K. repeatedly refused to talk, told
Gutierrez to leave, and told him that she wanted to go back inside.
J.K. moved to go back inside, and Gutierrez “lunged at [her] kind of like when
football players tackle each other, ” taking her to the ground . While on top of her, and as
T.M. physically intervened in the fray, Gutierrez used an unseen sharp blade to forcefully
slash J.K.’s throat and neck, transecting muscles and blood vessels from about the center

9
of her throat to the base of her hairline behind her right ear. Then Gutierrez got up and ran
away, leaving J.K. on the ground bleeding from the gaping neck wound that he had
inflicted.
A reasonable inference that Gutierrez engaged in premeditation before attacking
J.K. can be drawn from the circumstances proved, viewed as a whole . The intense
argument, contentious breakup, and J.K.’s rejection of Gutierrez’s attempts to reconcile
provided Gutierrez with a motive to kill. While Gutierrez was away from the home for a
short time, he located or acquired a razor blade or other sharp blade. He had that blade
when he reentered the home, and he held or carried it in such a way that it was not visible.
He made J.K. go outside with him, at ni ght and away from T.M., with the blade still
concealed in or near his hand. At some point, he used the blade to slash J.K.’s throat. He
then fled without rendering aid to J.K.
The circumstances proved are inconsistent with any rational hypothesis except that
Gutierrez premeditat ed the attack on J.K. Regarding planning activity, Gutierrez
minimizes the fact that he secured and concealed a weapon, arguing that “[t]hese behaviors,
even if consistent with having premeditated an attempt to kill [J.K.], are al so equally
consistent with Gutierrez having initially only intended to use the unseen weapon to scare
or injure her.” Gutierrez again selects some circumstances proved , while discounting or
ignoring others, and asks us to disregard the entirety of the circumstances proved. Given
the extremely serious wound inflicted on a vital part of J.K.’s body and the amount of force
needed to inflict the wound , we cannot reasonably infer a plan to merely scare or injure
J.K.

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Regarding motive, Gutierrez emphasizes evidence that “[he] returned [to the home]
to repair [his] relationship with J.K.” Gutierrez contends that the state presented “no
evidence that he was so angry over their argument that he would kill her,” and argues that
the circumstan ces proved do not “exclude the alternative, rational inference that
[murderous] intent arose spontaneously and without an intervening period of appreciable
time before the attempt itself occurred.” But he fails to credit other evidence proving that,
even as he tried to “work it out” with J.K., he was concealing a sharp blade in or near his
hand and, when J.K. refused to participate in relationship repair, he used that blade to slash
her throat. This evidence does not support an inference that an intent to kill arose in
Gutierrez without warning and with no appreciable time before he put that intent into
action.
Finally, Gutierrez makes conclusory claims that “the nature of the physical
altercation . . . simply cannot exclude the rational hypothesis that any attempt to kill [J.K.]
had not been premeditated,” but he fails to support those claims with citations to authority
or to the record. Gutierrez directed his attack to J.K.’s neck, a vital part of her body , and
he makes no attempt to distinguish the caselaw, cited above, that holds that the nature of a
murderous attack may indicate premeditation when the defendant deliberately places a
wound on a vital part of the victim’s body.
We conclude that the circumstances proved, viewed as a whole, are inconsistent
with any rational hypothesis except that Gutierrez’s attack on J.K. was premeditated.
Sufficient evidence supports Gutierrez’s conviction of attempted first-degree murder.

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II.
The Minnesota Sentencing Guidelines provide sentencing ranges that are
“presumed to be appropriate for the crimes to which they apply.” Minn. Sent. Guidelines
2.D.1 (2014). Any sentence that falls within the applicable range is considered a
presumptive s entence. Rushton v. State , 889 N.W.2d 561, 565 (Minn. 2017) ; see also
Minn. Sent. Guidelines 4.A, 5.A (2014) (providing “discretionary range[s] within which a
court may sentence without the sentence being deemed a departure”). Any sentence that
falls outside the applicable range is considered a departure from the presumptive sentence.
Minn. Sent. Guidelines 2.D.1.
“The guidelines permit departures from the presumptive sentence, but a court
departing from the guidelines must articulate ‘ substantial and compelling’ circumstances
justifying the departure. ” State v. Hicks , 864 N.W.2d 153, 156 (Minn. 2015) (quoting
Minn. Sent. Guidelines 2.D.1). “Substantial and compelling circumstances are those
demonstrating that the defendant’ s conduct in the offense of co nviction was significantly
more or less serious than that typically involved in the commis sion of the crime in
question.” Id. at 157 ( quotation omitted). Appellate courts “review a district court’ s
departure from a presumptive sentence for an abuse of di scretion.” State v. Fleming, 883
N.W.2d 790, 794 (Minn. 2016). “If the reasons given for an upward departure are legally
permissible and factually supported in the record, the departure will be affirmed. ” Hicks,
864 N.W.2d at 156 (quotation omitted).
One permissible aggravating factor is that “[t]he victim was treated with particular
cruelty for which the individual offender should be held responsible.” Minn. Sent.

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Guidelines 2.D.3.b; see also Minn. Stat. § 244.10, subd. 5a (2014) (same). “[T]he
particular cruelty aggravating factor is a reason that explains why the additional facts found
by the jury provide the district court a substantial and compelling basis for imposition of a
sentence outside the range on the grid.” State v. Rourke , 773 N.W.2d 9 13, 920 (Minn.
2009). “Particular cruelty involves the gratuitous infliction of pain and cruelty of a kind
not usually associated with the commissi on of the offense in question. ” Tucker v. State ,
799 N.W.2d 583, 586 (Minn. 2011) (quotation omitted). The nature and extent of a
victim’s injuries may indicate that the offender treated her with particular cruelty. Dillon
v. State, 781 N.W.2d 588, 600–01 (Minn. App. 2010), review denied (Minn. July 20, 2010).
The district court sentenced Gutierrez to 240 months in prison, a 24-month upward
departure for attempted first -degree murder with a criminal -history score of zero. See
Minn. Sent. Guidelines 2.G.11 (2014) (providing presumptive sentencing ranges for crime
of attempt or conspiracy to commit first -degree murder). The court explained that the
upward departure was based on (1) J.K.’s particular vulnerability, on account of her
pregnancy and the “significant size difference” between J .K. and Gutierrez; and (2) the
particular cruelty with which Gutierrez committed the offense, in light of J.K.’s prominent
scar and the changes in her voice.
According to Gutierrez, the record does not support a determination that he treated
J.K. with particularly cruelty , because “attempted murder with a single stab resultin g in
permanent scarring and injury is not any more . . . cruel than any other method of attempted
murder.” But Gutierrez did not inflict a typical single stab wound that left a scar after
healing; he slashed J.K.’s throat. A paramedic testified that he h ad never before seen a

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neck laceration as severe as J.K.’s and the trauma surgeon testified that he had never before
seen blood -vessel injury as extensive as J.K.’s. The trauma surgeon also testified that
J.K.’s wound involved an “excessive amount of forc e” and nearly killed her, and the
paramedic testified that J.K.’s “very wide” and “gaping” wound exposed “parts of her neck
muscle all the way down to her lower airway.” Also, the state presented abundant evidence
that the attack left J.K. with a large permanent scar and with her voice deeper and raspier
than it was before she was cut.
Accordingly, we conclude that the record supports the district court’s determination
that J.K.’s prominent scar and the changes in her voice , which the jury found were a
permanent disfigurement and a permanent injury, demonstrate that Gutierrez treated J.K.
with particularly cruelty. Because “a single aggravating factor may, by itself, justify an
upward durational departure,” State v. Solberg, 882 N.W.2d 618, 624-25 (Minn. 2016), we
decline to consider whether the record also supports the district court’s determination that
J.K. was particularly vulnerable.
Affirmed.