This opinion will be unpublished and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
C2-99-790

State of Minnesota,
Respondent,

vs.

Craig Robert Maturi,
Appellant.

Filed February 8, 2000
Affirmed in part, remanded in part
Crippen, Judge

Itasca County District Court
File No. K0971080

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

John J. Muhar, Itasca County Attorney, 123 Fourth Street N.E., Grand Rapids, MN 55744 (for respondent)

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant challenges his third-degree-assault conviction, claiming that the jury was improperly instructed, there was insufficient evidence to overcome his claim of self-defense, and he was denied a speedy trial. We affirm on these issues but remand for the trial court to review the prosecution costs imposed against appellant.

FACTS

Appellant was charged with third-degree assault in June 1997. One month later, appellant waived an omnibus hearing and pleaded not guilty. In March 1998, both the prosecution and appellant requested a continuance. Two months later, appellant requested a continuance, and the prosecution joined in this request. Trial was set for August 1998. On the August trial date, over appellantís objections, the trial court granted the prosecutorís request for a continuance. A jury trial was held in December 1998, and the jury found appellant guilty on the assault charge.

Undisputed evidence shows a conflict between appellant and Travis Roush. Appellant admitted he struck Roush one or more times, and these blows resulted in serious lacerations to Roushís head.

After appellant was convicted, the trial court stayed imposition of a five-year sentence of incarceration on various conditions, including 90 days in jail and the payment of $1,010 for prosecution costsóa payment obligation that would be reduced to $750 if a restitution obligation was paid within six months.

D E C I S I O N

1. The Jury Instructions.

In its initial instructions, the trial court instructed the jury on the elements of assault, but did not include CRIMJIG 13.01, which defines assault to include "an act [done] with intent to cause fear in another person of immediate bodily harm or death." 10 Minnesota Practice, CRIMJIG 13.01 (1990). During deliberations, the jury asked for a "clear definition of assault," and the trial courtís response referred to the prior instructions, without altering them to include CRIMJIG 13.01. The record makes it clear the initial instructions were approved by counsel for appellant, and there is no record of any objection by appellantís counsel to the trial courtís response to the juryís question.

Failure to challenge an instruction at trial, including a failure to challenge a trial courtís response to a jury question, waives the right to appeal on the issue unless the trial court committed plain error that affects substantial rights of the appellant. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); State v. Crims, 540 N.W.2d 860, 864 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996). Before this court "reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights." Griller, 583 N.W.2d at 740 (citation omitted). If all three factors are evident, this court then assesses "whether it should address the error to ensure fairness and the integrity of the judicial proceedings." Id. (citation omitted). Appellant argues that a definition-of-assault instruction was needed so that the jury could properly assess his claim regarding Roushís conduct. Even if the instruction had been appropriate, the absence of the instruction did not affect substantial rights of appellant and a new proceeding is not necessary to ensure the fairness and integrity of the assault conviction.

Although appellant testified that he feared he would be struck by Roush, there was evidence that appellant confronted Roush and acted in anger towards Roush, that he hit Roush at least once, that Roush landed no blows, and that appellant felt "good" hurting Roush after the event occurred. Most importantly, there is no evidence that appellant had to strike Roush to avoid harm to himself. See State v. Andrasko, 454 N.W.2d 648, 651 (Minn. App. 1990) (before a person can invoke self-defense, a person has a duty to "retreat or avoid the danger if reasonably possible") (citation omitted), review denied (Minn. June 25, 1990).

2. Sufficiency of the Evidence.

Appellant claims that the evidence was insufficient to overcome his claim of self-defense. When reviewing a claim that evidence is insufficient to support a verdict, we are limited to a "painstaking analysis of the record" but are to view the evidence in a light most favorable to the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Because appellant provided some evidence to support his claim of self-defense, the state bore the burden to disprove his self-defense claim beyond a reasonable doubt. State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980).

The jury had abundant evidence to reasonably conclude that appellant was not acting in self-defense. In addition to the circumstances already stated, Roush testified that he was pushed or jumped from behind by appellant, and appellant told an investigating police officer that he had confronted Roush.

3. Speedy Trial.

Appellantís case was tried a year and a half after it was charged. He contends that this lapse of time violated his right to a speedy trial. We review the trial courtís decision for an abuse of discretion. State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989). In examining appellantís speedy trial claim, this court considers the length and explanation for the delay, whether appellant asserted his right to a speedy trial, and whether the delay prejudiced him. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (quoting Barker v. Wingo, 407 U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93 (1972)).

The trial was rescheduled at least twice, without any objection from either party, until it was finally scheduled for December 1998. Appellantís first demand for a speedy trial, if it occurred at all, must be construed from his objection to the stateís motion for a continuance in August 1998. Appellantís contribution to the earlier delay of the trial and his failure to assert his right to a speedy trial are considerations against his claim for relief on appeal. See Windish, 590 N.W.2d at 317-18; see also State v. Helenbolt, 334 N.W.2d 400, 405 (Minn. 1983) (even strong assertions of right to speedy trial not accorded weight when made when delay was half over at time of assertion); State v. Reese, 446 N.W.2d 173-178, (Minn. App. 1989) (assertion of right after significant delay mitigates severity of delay), review denied (Minn. Nov. 15, 1989). In addition, appellant has failed to show prejudice. Although he points to one witness who is no longer available, he fails to point to any significance of this witnessís proposed testimony and fails to show at what point in time this witness became unavailable. Under these circumstances, appellantís right to a speedy trial was not violated.

4. Prosecution Costs.

Appellant objects to the trial courtís order that he pay $1,010 in prosecution costs, noting that the trial court gave no explanation as to how it arrived at that figure. Criminal prosecution disbursements may be imposed as part of a defendantís sentence under Minn. Stat. ß 631.48 (1998). If the particular costs imposed are "recoverable under the criminal prosecution costs statute, a trial courtís award will not be reversed absent a clear abuse of discretion." State v. Lopez-Solis, 589 N.W.2d 290, 292 (Minn. 1999) (citation omitted). The costs imposed must be either "expressly provided for in the statute, or analogous to costs taxable to the prevailing party in a civil action." Id., 589 N.W.2d at 293 (citation omitted).

There is no record in this case of any itemization of the prosecutionís disbursements. Under these circumstances, we remand for a review of the costs of prosecution and a trial court order enumerating which costs are properly taxed to appellant.

Affirmed in part, remanded in part.

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