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This opinion will be unpublished and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
A17-1737

State of Minnesota,
Respondent,

vs.

John Bruce Steurer,
Appellant.

Filed October 29, 2018
Affirmed
Smith, John, Judge*

Ramsey County District Court
File No. 62-CR-16-8424

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebr ook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M. , Presiding Judge; Reilly, Judge; and
Smith, John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm appellant John Bruce Steurer’s conviction for attempted second -degree
intentional murder because first-degree assault is not a lesser-included offense of attempted
second-degree intentional murder and because aggravating factors support the district
court’s upward-departure sentence.
FACTS
D.L., appellant John Bruce Steurer’s wife, obtained an order for protection against
appellant in September 2016. In early November 2016, D.L. divorced appellant after 23
years of marriage.
On November 23, 2016, appellant parked his pickup truck in the parking lot outside
D.L.’s office building in North St. Paul and walked inside. Appellant cradled a shotgun in
his arm and asked D.L. whether she had “any last words.” D. L. tried to get away from
appellant. After a brief struggle, D.L. broke away from appellant and ran down the stairs
of her office. Appellant chased her and shot her before she made it to the bottom of the
stairs. D.L. sustained gunshot wounds to the back of her left arm and on her left side. In
all, 28 shotgun BBs went into D.L.’s body.
D.L. continued down the stairs and exited through a door at the bottom of the
stairway. She shut the door behind her and leaned against it, trying to keep it shut.
Appellant broke through the door and attacked D.L. Appellant punched her in the face and
hit her head against the floor. Appellant hit D.L. in the head with the butt of his shotgun.
D.L. managed to escape and called 911. One of D.L.’s coworkers also cal led 911. He

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reported the shooting. Police arrived at D.L.’s office building and found spent shotgun
wads, a fired shotgun shell, and an unfired shell that “apparently malfunctioned.”
Later that afternoon, appellant made two phone calls, one to his mother and the other
to D.L. Appellant told his mother what had happened earlier that afternoon and explained
that he did not intend to kill D.L., just make her feel “like he felt,” a man who “had nothing
left.” He also said that he would kill himself once the police stopped him. Appellant’s
mother called 911 and reported that appellant had shot D.L. “[i]n the back of the head.”
She also told police that appellant was at Bunker Park and planned to kill himself.
Appellant left a voicemail on D.L.’s phone, saying, “Hey [D.L.]. Sorry I had to do that to
ya. But, [I] can’t have ya being with some other guy, so that’s what I had to do. Bye.”
Police found appellant in Bunker Hills Park in the city of Coon Rapids. Appellant
had shot himself in the head with a shotgun, which police found inside appellant’s pickup
truck. Police also found notes that appellant had written to the police and to his parents.
Paramedics transported him to the hospital.
The state charged appellant with attempted second -degree intentional murder, in
violation of Minn. Stat. § 609.19, subd. 1(1) (2016). The case was tried to a jury over four
days in May 2017. The state called nine witnesses, including the 911 dispatcher, D.L.,
D.L.’s coworker who called 911, and four police off icers who responded to the incident.
Appellant testified and called three witnesses, his mother and father, and a police detective.
Appellant testified to the extent he could remember the incident. Appellant testified
that he parked next to D.L.’s vehi cle in the parking lot of her work, entered the building,
and “put the gun right alongside of her shoulder.” Appellant testified that he shot D.L.

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when she ran down the stairs. Appellant testified that he was angry with D.L. for cheating
on him before they “were even done be[ing] married” and that he “didn’t want to hurt her
whatsoever,” just “make her pissed off” and “scare her.” Appellant further testified that
he “could have do[ne] a lot worse.” He continued, “I didn’t want to shoot her in the head
or anything because she has two kids, granddaughter, so I didn’t want to do that.”
Appellant also testified that, when he shot himself, he intended to end his life.
Appellant requested that the district court instruct the jury on first-degree assault as
a lesser-included offense of attempted second-degree intentional murder. Appellant argued
that the “elements are similar between attempted murder and first degree assault,” that “the
evidence would reasonably support a conviction of the lesser degree [of fense],” and that
“a finding of not guilty of the greater offense would be justified.” The state opposed
appellant’s motion arguing that, although first-degree assault is a lesser offense, it is not a
lesser-included offense of attempted second-degree intentional murder. The district court
agreed with the state and denied appellant’s motion. The district court only instructed the
jury on the charged offense.
The jury found appellant guilty of attempted second-degree intentional murder. The
jury also found aggravating facts by answering four Blakely questions on a special verdict
form. The jury found that appellant violated an existing harassment restraining order
(HRO), struck D.L. in the face with the butt of the shotgun after shooting her, punched
D.L. in the face after shooting her, and did not show remorse.
At sentencing, the state moved for an upward -durational-departure sentence. The
state argued that violation of an HRO is an in dependent aggravating factor supporting a

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departure and that the remaining facts “indicate particular cruelty” and support a departure.
Appellant requested that the district court adopt only the first Blakely finding and impose
a guidelines sentence. The district court found substantial and compelling reasons for an
upward departure and imposed a 240-month sentence.
D E C I S I O N
I. Lesser-included-offense instruction

Appellant argues that the district court’s failure to give the jury a lesser-included-
offense instruction on first-degree assault prejudiced his defense because he could not fully
present his theory of the case.
It is “the trial court’s duty to instruct when necessary” and to determine “whether a
lesser-included offense in struction should be given.” State v. Dahlin , 695 N.W.2d 588,
594 (Minn. 2005). To do so, district courts “view the evidence in the light most favorable
to the party requesting the instruction,” id. at 595, 597, and determine whether “(1) the
lesser offense is included in the charged offense, (2) the evidence provides a rational basis
for acquitting the defendant of the offense charged, and (3) the evidence provides a rational
basis for convicting the defendant of the lesser-included offense,” State v. Zumberge, 888
N.W.2d 688, 697 (Minn. 2017).
We apply an abuse-of-discretion standard of review to a district court’s denial of a
request for a lesser-included-offense instruction. Dahlin, 695 N.W.2d at 597. A trial court
abuses its discretion if it denies an instruction “when evidence exists to support the giving
of the instruction.” State v. Hannon, 703 N.W.2d 498, 510 (Minn. 2005) (quoting Dahlin,
695 N.W.2d at 598). Even if a district court abuse s its discretion by failing to give an

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instruction, this court will not reverse a conviction unless the defendant was prejudiced.
Dahlin, 695 N.W.2d at 598 -99. “A defendant is prejudiced when the jury may have
convicted the defendant of only the lesser offense had the lesser -included-offense
instruction be en given.” Zumberge, 888 N.W.2d at 697 (quoting Troxel v. State , 875
N.W.2d 302, 310 (Minn. 2016)).
“An included offense includes a lesser degree of the same crime.” Dahlin at 695
N.W.2d at 597; see Minn. Stat. § 609.04, subd. 1 (201 6) (allowing defendant to be
“convicted of either the crime charged or an included offense, but not both”). A lesser -
included offense also is “an attempt to commit a lesser degree of the same crime” or “a
crime necessarily proved if the crime charged were proved.” State v. Gisege, 561 N.W.2d
152, 156 (Minn. 1997) (quoting Minn. Stat. § 609.04, subd. 1 (1996)).
To determine whether one offense necessarily is proved by the proof of the charged
offense, we look at the statutory definitions of the offenses. Id. Here, the charged offense
was attempted second -degree murder. When a person, “with intent to commit [murder],
does an act which is a substantial step toward, and more than preparation for, the
commission of [murder] ,” the person commits attempted se cond-degree murder. Minn.
Stat. § 609.17, subd. 1 (2016). The necessary mens rea for attempted second -degree
intentional murder is “intent to effect the death of th at person . . . without premeditation.”
Minn. Stat. § 609.19, subd. 1(1).
Appellant argues that the district court erred by failing to instruct the jury on the
lesser offense of first -degree assault. A conviction of first -degree assault requires a
showing that a defendant assaulted another person and inflicted great bodily harm. Minn.

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Stat. § 609.221, subd. 1 (2016). Because first-degree assault “includes ‘great bodily harm’
as a necessary element[,] . . . the state does not necessarily prove first -degree assault by
proving . . . attempted second -degree murder because these two crimes do n ot require
proof of bodily harm.” Gisege, 561 N.W.2d at 156 (quoting Minn. Stat. § 609.221 (1996)).
Indeed, “first-degree assault is not a lesser degree of attempted murder,” or is it a lesser -
included offense of attempted second-degree murder. Id.
Here, the district court denied appellant’s motion for a lesser -included-offense
instruction on first-degree assault and instructed the jury only on attempted second-degree
intentional murder. See Minn. Stat. § 609.04, subd. 1. The district court correctly found
that, although first -degree assault is a lesser offense than attempted second -degree
intentional murder, it is not a lesser-included offense. See Gisege, 561 N.W.2d at 156.
Appellant cites State v. Flowers, 788 N.W.2d 120 (Minn. 2010), for the proposition
that a district court should instruct the jury on a lesser, non -included offense if it is the
defendant’s theory of the case. In Flowers, however, the supreme court declined to decide
“whether the prohibition on lesser -but-nonincluded-offense instructions articulated in
Gisege bars a defendant from instructing the jury on his theory of defense when his defense
is a lesser but nonincluded crime.” Id. at 133. Even if appellant’s theory of the case is
inconsistent with the state’s theory, the state did not charge appellant with the lesser, non-
included offense of assault. Therefore, even if appellant could have discussed his theory
with the jury, the district court did not have authority to instruct the jury on a lesser but
non-included offense. See id.

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Because first-degree assault is not a lesser -included offense of attempted second-
degree murder, the district court did not abuse its discretion in denying appellant’s motion
for a lesser-but non-included-offense instruction.
II. Upward-durational-departure sentence

Appellant argues that the district court abused its discretion by upwardly departing
from the guidelines sentence and by relying on the four aggravating facts found by the jury.
A district court “can exercise its discretion [in sentencing] to depart from the
guidelines only if aggravating or mitigating circumstances are present, and those
circumstances provide a substantial and compelling reason not to impose a guidelines
sentence.” State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014) (quotations omitted); see
Minn. Sent. Guidelines 2.D.1 (2016). “Substantial and compelling” circumstances are
those that demonstrate “that the defendant’s conduct in the offense of conviction was
significantly more or less serious than that typical ly involved in the commission of the
crime in question.” Tucker v. State, 799 N.W.2d 583, 586 (Minn. 2011) (emphasis omitted)
(quotation omitted).
Whether such reasons or aggravating factors exist are questions of fact for the
sentencing jury. Dillon v. State, 781 N.W.2d 588, 595 (Minn. App. 2010), review denied
(Minn. July 20, 2010). “The reasons used for departing must not themselves be elements
of the underlying crime.” State v. Blanche, 696 N.W.2d 351, 378 -79 (Minn. 2005). In
relying on aggravating factors, the district court must provide written reasons that specify
the substantial and compelling nature of the circumstances that justify the departure. Id. at
379. “We review a district court’s decision to depart from the presumptive guidelines

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sentence for an abuse of discretion.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
“A district court abuses its discretion when its reasons for departure are legally
impermissible and insufficient evidence in the record justifies the departure.” Id.
Here, the district court upwardly departed from a presumptive sentence in the range
of 130-183 months and imposed a 240 -month sentence. Minn. Sent. Guidelines 2.G.2 &
4.A (2016). The district court relied on the jury’s fi ndings of aggravating fact s. The
district court’s reasons for departing can be divided into three: appellant violated an HRO,
he committed the charged offense with particular cruelty, and he lacked remorse. Although
“a single aggravating factor may justify a departure,” Dillon, 781 N.W.2d at 599, we
address each of these reasons in turn.
A. HRO violation
Appellant argues that his violation of a restraining order, by itself, cannot support
the scope of the distric t court’s departure. The state argues that this ground supports the
upward departure for two reasons: (1) the violation of an existing HRO, by it self, is
sufficient to justify a departure; and (2) the district court acted within its discretion to
upwardly depart to a sentence less than double the presumptive term.
The “[v]iolation of a restraining order is a valid reason for an upward departure.”
State v. Coley , 468 N.W.2d 552, 556 (Minn. App. 1991). Here, t he jury found that
appellant violated an existing HRO at the time he c ommitted the charged offense. The
district court adopted this finding and noted that appellant “totally ignored court orders to

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leave [D.L] alone.” The district court did not abuse its discretion by adopting this finding
and upwardly departing on this ground.
B. Particular cruelty
Appellant argues that the jury’s second and third special -verdict answers—that he
punched D.L. in the face and hit D.L. in the face with the butt of his shotgun after already
shooting her—related to whether he intended to kill D.L., an element of the offense of
conviction that cannot be relied upon as a ground for departure.
A district court may impose an upward -departure sentence if “[t]he victim was
treated with particular cruelty for which the individual offender should be held
responsible.” Minn. Sent. Guidelines 2.D.3.b.(2) (2016). Particular cruelty “involves the
gratuitous infliction of pain and cruelty of a kind not usually associated with the
commission of the offense in question.” State v. Rourke , 773 N.W.2d 913, 922 (Minn.
2009) (quotations omitted).
Here, the district court asked the jury two specific factual questions in determining
that appellant committed the charged offense with particular cruelty . The jury answered
both affirmatively. The district court adopted the jury’s findings and the distr ict court
relied on them in sentencing.
The jury’s findings that appellant punched D.L. with his fist and beat D.L. with the
butt of his shotgun after shooting her are not themselves elements of the charged crime but
demonstrate appellant’s particular cruelty toward D.L. After shooting D.L. , as she ran
down the stairway, appellant pursued her and found her trying to barricade herself behind
a door at the end of the stairs. Once appellant broke down the door, he repeatedly beat

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D.L. in the face with his fist and the butt of his shotgun. Appellant’s conduct after breaking
down the door demonstrates particular cruelty because he gratuitously inflicted pain and
injury on D.L. to make her feel “ like he felt.” See Rourke, 773 N.W.2d at 922. We note
that if D.L. had not managed to escape from appellant and run back inside the building, she
“could very well have been killed.” See State v. Joslin, 406 N.W.2d 99, 100 (Minn. App.
1987), review denied (Minn. Jun. 30, 1987) (affirming dis trict court’s upward -departure
sentence on conviction of attempted second -degree murder, in part, because defendant
pursued victim after throwing victim to the ground, choking her, and stabbing her).
Record evidence supports the jury’s findings that appellant punched D.L. in the face
with his fist, and hit her in the face with the butt of his shotgun. These facts support the
district court’s determination that appellant acted with particular cruelty and t he district
court did not abuse its discretion in upwardly departing on this ground.
C. Lack of remorse
Appellant argues that, in departing from the sentencing guidelines, the district court
improperly relied on appellant’s exercise of his constitutional right to testify by asking the
jury whether appellant’s testimony showed a lack of remorse.
A defendant’s lack of remorse may be a reason to depart from the presumptive
sentence. See State v. Griller, 583 N.W.2d 736, 744 (Minn. 1998) ; State v. Folkers, 581
N.W.2d 321, 327 (Minn. 1998) . A defendant’s la ck of remorse c an “relate back and be
considered as evidence bearing on a determination of the cruelty or seriousness of the

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conduct on which the conviction was based.” Solberg, 882 N.W.2d at 625 ( quotation
omitted), see Dillon, 781 N.W.2d at 599-600.
The district court did not determine the severity of appellant’s sentence based on
whether he “exercised constitutional rights during the adjudication process.” Minn. Sent.
Guidelines cmt 2.D.202 (2016); see Minn. Sent. Guidelines 2.D.2.e. (2016). Rather , the
district court asked the jury to consider appellant’s testimony and determine whether it
reflected a lack of remorse. T he district court adopted the jury’s finding that appellant’s
testimony reflected a lack of remorse and considered appellant’s lack of remorse as relating
back to the cruelty of his conduct.
Record evidence supports the district court’s explanation that appellant lacked
remorse because he “left her to bleed to death alone in a warehouse” and “caused this
woman lasting harm.” Appellant did not help D.L. by trying to stop the bleeding or calling
911. Instead, appellant called D.L. to say, “Sorry I had to do that to ya,” and fled to a park
where he attempted suicide. The record supports a finding that appellant’s lack of remorse
related back to the cruelty of his conduct. The district court did not abuse its discretion in
adopting the jury’s finding that appellant lacked remorse and upwardly departing on this
ground.
In sum, the district court did not err in denying appellant’s moti on for a lesser -
included-offense instruction or abuse its discretion in imposing an upward -durational-
departure sentence.
Affirmed.