This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-99-1241

 

 

State of Minnesota,

Respondent,

 

vs.

 

Virgil Adam Henderson,

Appellant.

 

 

Filed May 30, 2000

Affirmed

Shumaker, Judge

 

Hennepin County District Court

File No. 98098935

 

 

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106, and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

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

 

 

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

SHUMAKER, Judge

Appellant Virgil Adam Henderson challenges his conviction of unintentional second-degree felony murder, arguing that the state failed to prove beyond a reasonable doubt that he was not acting in self-defense. We affirm.

FACTS

Virgil Henderson and others consumed crack-cocaine and alcohol on a Minneapolis street corner during the afternoon of September 28, 1998. Henderson had been "high" on crack-cocaine continuously for seven or eight days.

Throughout the afternoon, Rodney Harris harassed Henderson and ridiculed him about his poor personal hygiene. Harris ignored Henderson's request to be left alone. Henderson was unsuccessful in his attempts to avoid contact with Harris.

Harris told Henderson that he was going to leave for awhile and that, if Henderson had not showered by the time he returned, he would "kick his ass."

Upon his return, Harris noticed that Henderson had not showered. The testimony was in conflict as to whether either person threw a punch at the other. One witness testified that Harris ran up to Henderson "like he was going to do something to him." Another witness testified that the confrontation was "just a verbal one," and that there was no physical contact. During the encounter, Henderson shouted an obscenity at Harris and stabbed him in the chest with a butcher knife. Harris died from the wound.

At trial on a charge of murder, Henderson claimed he acted in self‑defense. The jury found him guilty of unintentional second-degree felony murder. On appeal, Henderson challenges the sufficiency of the evidence to rebut his claim of self-defense.

D E C I S I O N

When an appellant contends that the evidence was insufficient to support a claim or defense, this court painstakingly analyzes the record to determine whether the evidence, viewed in a light most favorable to the conviction, was sufficient to allow the jury to reach the verdict it returned. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably find the defendant guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

The jury found Henderson guilty of unintentional murder in the second degree while committing a felony assault. Henderson concedes that he stabbed Harris and that Harris died from the wound. But he claims that he killed Harris in self-defense and that the state failed to disprove his claim.

There are four elements to self-defense: (1) the absence of aggression or provocation by the defendant; (2) the defendant's actual and honest belief that he was in imminent danger of death or great bodily harm; (3) the defendant had reasonable grounds for his belief; and (4) the defendant had no reasonable possibility of retreat. State v. Nystrom, 596 N.W.2d 256, 260 (Minn. 1999). Minnesota does not recognize a so-called "imperfect self-defense," in which the claim is established if any one element exists. State v. Thompson, 544 N.W.2d 8, 12-13 (Minn. 1996).

To rebut a self-defense claim in a homicide, the state must prove beyond a reasonable doubt that the killing was not justifiable. State v. Harvey, 277 N.W.2d 344, 345 (Minn. 1979) (quotation and citation omitted). When the state disproves any of the four elements of self-defense, the claim is rebutted. We review the record to determine whether the evidence was sufficient for the jury to find beyond a reasonable doubt that the state had disproved at least one element of the self-defense claim. State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987).

The second element of self-defense requires that Henderson had an actual, honest belief that he was in imminent danger of death or great bodily harm and that stabbing Harris was necessary. Although this element implies that the requisite belief is subjective, the third element requires the existence of reasonable grounds for the belief. "Reasonableness implies an objective standard." State v. Hennum, 428 N.W.2d 859, 866 (Minn. App. 1988), affd in part, revd in part, 441 N.W.2d 793, 800 (Minn. 1989) (affirming on the self-defense issue and reversing on other grounds).

Whatever Henderson's actual and honest belief was, considering his prolonged lack of sleep and the influence of crack-cocaine, the jury could have been persuaded beyond a reasonable doubt that there were no objectively reasonable grounds for his belief. Harris had no weapon and his sole threat to Henderson was that he would "kick his ass." Nothing in the objective circumstances of the occurrence reasonably supports a belief that Henderson was in imminent danger of great bodily harm or death.

Moreover, there was no evidence that Henderson lacked a reasonable opportunity to retreat. The incident happened on a city street corner. Harris actually left the area for a half-hour after he threatened to "kick his ass." When Harris returned, he did not restrain Henderson in any way or compel him to stay through oral threats.

The jury reasonably could have found that the state rebutted the third and fourth elements of self-defense beyond a reasonable doubt.

Affirmed.