This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-99-619

State of Minnesota,
Respondent,

vs.

Douglas Leon Jaster,
Appellant.

Filed January 25, 2000
Reversed and Remanded
Kalitowski, Judge

McLeod County District Court
File No. KX9876

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Michael Junge, McLeod County Attorney, 830 11th Street East, Suite 214, Glencoe, MN 55336 (for respondent)

John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Douglas Leon Jaster was convicted of felony murder in the second degree and second-degree assault. He argues on appeal that his convictions must be reversed due to an error in the jury instructions coupled with prosecutorial misconduct. We reverse and remand.

D E C I S I O N

Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). Although appellant did not object to the instructions at trial, we have discretion to consider appellantís claim if there is plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If we find plain error affecting substantial rights, we then assess whether we should address the error to ensure the fairness and integrity of the judicial proceedings. Id.

Appellant was charged with three offenses in the beating death of the victim: intentional murder in the second degree, felony murder in the second degree, and assault in the second degree. The jury acquitted appellant of second-degree intentional murder and convicted him of felony murder in the second degree and the underlying assault charge. Appellant argues his convictions must be reversed because the district court failed to instruct the jury on the intent element of assault. We agree.

As the state concedes, the court committed plain error in instructing the jury on second-degree assault. A person is guilty of second-degree assault if the person assaults another with a dangerous weapon. Minn. Stat. ß 609.222 (1998). "Assault" is defined in a separate statute as "[a]n act done with intent to cause fear in another of immediate bodily harm or death" or the "intentional infliction of or attempt to inflict bodily harm upon another." Minn. Stat. ß 609.02, subd. 10 (1998). The court omitted the instruction defining assault as an act done with intent to cause fear of immediate bodily harm or death or an intentional infliction of bodily harm. See 10 Minnesota Practice, CRIMJIG 13.01 (1990). Intent is an essential element of assault. Johnson v. State, 421 N.W.2d 327, 331 (Minn. App. 1988), review denied (Minn. May 4, 1988).

While the state concedes that the omission was plain error, it argues that the error did not affect appellantís substantial rights. We disagree. To determine if a defendantís substantial rights were affected, this court analyzes whether the error was prejudicial and whether it affected the outcome of the case. Griller, 583 N.W.2d at 741. An error is prejudicial if there is a reasonable likelihood that giving the instruction in question would have had a significant effect on the juryís verdict. Id.

It is elementary to a fair trial and due process that the jury is fully and accurately instructed on the elements of the charged offense. State v. Gebremariam, 590 N.W.2d 781, 783 (Minn. 1999) (reversing conviction where the instructions gave a "fundamentally incorrect definition of the basic elements of the charged crime"). The jury in this case was given a fundamentally incorrect instruction on the intent element of assault. The verdict indicates that the jury may well have been confused about the requirements of assault in this case, and there is a reasonable likelihood the correct instructions would have had an effect on the verdict. The jury acquitted appellant on the only charge for which the instructions clearly required a finding of intent, that of intentional murder in the second degree. Moreover, the potential for confusion on the part of the jury was increased because the instructions for felony murder correctly stated "[i]t is not necessary that the state prove that the defendant had an intent to effect the death of [the victim]."

In addition, the prosecutorís statements exacerbated the error in the jury instructions. See State v. Olson, 482 N.W.2d 212, 216 (Minn. 1992) (holding that the error in jury instructions was not harmless beyond a reasonable doubt, particularly in view of the emphasis in the prosecutorís closing argument). Here, the prosecutor further confused the jury regarding the assault offense by stating in closing argument:

the question is, did Mr. Jaster admit that he assaulted [the victim] with a dangerous weapon? Yes, he did. I submit to you that the defendant has admitted that offense.

While appellant admitted fighting with the victim, he did not admit the crime of assault with a dangerous weapon. Further, whether hands or feet constitute dangerous weapons is a jury question. State v. Davis, 540 N.W.2d 88, 90 (Minn. App. 1995), review denied (Minn. Jan. 31, 1996). The prosecutor also mischaracterized the nature of appellantís admissions in closing argument when he said that appellant told Bart Nelsen, "Iím going to go over and teach [the victim] a lesson. Iím going to go beat him up." The record indicates that Bart Nelsen actually testified that appellant said he was going to "settle a disagreement."

Under the totality of the circumstances, there is a reasonable likelihood that giving the proper jury instructions would have had a significant effect on the juryís verdict. We cannot conclude that appellant received a fair trial where the jury was not instructed on a fundamental element of the crime, and the prosecutor further confused the jury about the assault. Thus, in order to preserve the fairness and integrity of the judicial proceedings, a new trial is required.

Reversed and remanded.