Judge tosses Duluth firefighter's robbery charge
Judge Theresa Neo said she did not see any evidence that Conrad Sunde had the intent to take Mary Modec's phone before he threw it into the woods during an alleged assault stemming from a verbal confrontation over his off-leash dogs.
A judge has dismissed a felony robbery charge against a Duluth firefighter accused of physically attacking a woman along a western Duluth trail last summer.
Conrad John Sunde IV, 49, still faces a felony count of third-degree assault in the July 10 incident on the Duluth Traverse Trail System. But this week's decision significantly reduces the severity of his potential consequences, if convicted.
Sunde, of Proctor, is accused of striking 65-year-old Mary Modec with his bike, shoving her face into the ground and throwing her phone into the woods during an altercation involving the off-duty firefighter's unleashed dogs.
While he was initially cited for misdemeanor assault, the St. Louis County Attorney's Office in October brought felony charges of aggravated first-degree robbery and third-degree assault.
"Modec did not express any sentiment that would lead this court to believe that defendant's intention for the alleged assault was to steal Modec's phone," Neo wrote.
In an earlier brief, defense attorneys David Keegan and Mikkel Long acknowledged that Sunde had his three dogs off-leash and that Modec verbally confronted him on the trail near Coleman Street and 84th Avenue West.
Sunde admitted to a police officer that he struck the victim with the front tire of his bike, but the attorneys argued that he only did so after seeing Modec reach for a canister or pepper spray or mace on a lanyard around her neck.
"Responding to his concern that he or his dogs might be maced, Sunde reacted by putting his bicycle between himself and Modec and pushed it toward her, reflexively throwing Modec's cellphone into the brush," Keegan and Long wrote. "Sunde then left the area."
Police said the phone was located within 150 feet of the confrontation site, but the defense attorneys suggested it was "probably significantly less."
"There is no evidence in this discovery to establish that Conrad Sunde had the requisite intent to take or carry away Modec's cell phone as is required in the (jury instructions) and caselaw," Keegan and Long argued.
Prosecutor Nate Stumme defended the robbery charge. He said Modec was reaching for her phone to take a photo of the dogs when Sunde "charged" her with his bike, using his hand to grind her face into the gravel trail and repeatedly calling her a "b-----."
Stumme said Sunde admitted to using force to physically remove the phone from the victim's hand, and argued it doesn't matter whether he had an intent to take her property prior to the assault.
"The Minnesota courts have consistently viewed the events surrounding the use of force and a taking as a continuum," Stumme wrote. "It is for the jury, not the court, to determine whether the continuum of events establishes that the use of force was to overcome the resistance of the victim to the taking."
In assessing probable cause challenges, judges are required to view evidence in light most favorable to the prosecution, most often resulting in a finding that there is sufficient cause for the charges to at least be considered by a jury.
But Neo disagreed with Stumme's argument, writing in a six-page order that she did not see a "clear case of theft" alleged.
"At its core, a robbery consists of a theft that is facilitated by an assault," the judge said.
Neo wrote that it is "key to look at Modec's statements surrounding the incident to try and determine what the evidence supports in charging (Sunde)."
"When interviewed, Modec recounted the incident and described the assault in detail," the judge wrote. "Defendant recounted similar facts, with a few differences that he explained as his perception of the incident and his motivations behind his actions. While the phone being missing was discussed briefly throughout these interviews, Modec made it clear she was mostly 'pissed' about the dogs not being leashed and her being assaulted."
The robbery count carried a maximum of 20 years in prison, with a first-time offender expected to receive approximately four years in prison under state sentencing guidelines. The assault charge has a maximum sentence of five years, with a presumptive probationary sentence.
Stumme did not immediately respond to a request for comment on the ruling.
The firefighter's attorneys acknowledged probable cause to support the assault charge, but suggested they would argue self-defense at trial.
Sunde has been employed by the city since January 2001, earning an annual salary of $74,473. He served a 30-day unpaid suspension in the immediate aftermath of the incident.
Sunde did not have any prior disciplinary history, according to personnel records obtained by the News Tribune through a public data request. But Fire Chief Shawn Krizaj said the incident was "highly concerning and considered a severe and dangerous breach of policy."
"As a city of Duluth firefighter, you are responsible for safeguarding lives by serving and protecting the public and this community," Krizaj wrote in the notice of suspension. "In a public safety role, you are held to a higher standard to protect the safety of others and are expected to avoid situations that would adversely affect the credibility or public perception of the fire service procession, specifically the Duluth Fire Department."
Sunde remains actively employed by the city. A scheduling conference is set in the criminal case for April 2.