This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-1050

 

State of Minnesota,

Respondent,

 

vs.

 

Alfredo Elias Uribe,

Appellant.

 

Filed March 27, 2001

Affirmed

Willis, Judge

 

Yellow Medicine County District Court

File No. K699394

 

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

 

Thomas G. Kramer, Yellow Medicine County Attorney, 132 8th Avenue, P.O. Box 128, Granite Falls, MN  56241 (for respondent)

 

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

 

            Considered and decided by Klaphake, Presiding Judge, Amundson, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges his conviction of third-degree assault.  He argues that (1) the circumstantial evidence presented at trial was insufficient to support his conviction and (2) the district court erred in giving an instruction to the jury that defined third-degree assault without defining “assault.”  Because the jury could reasonably have concluded that appellant committed the assault, and because the jury instruction, taken as a whole, fairly and accurately explained the law, we affirm.

FACTS

In August 1999, appellant Alfredo Uribe, his wife, and his father-in-law, John Carlson, went to the American Legion Club in Granite Falls.  While they and friends were seated at a table, Uribe and Carlson noticed a group of men at the bar looking in their direction.  One of those men, Darrell Davies, was the estranged husband of a woman seated at Uribe’s table.  Standing directly behind Davies was Mark Anderson, the victim, who was engaged in conversation with others.

            Uribe and Carlson approached the bar and asked the group of men why they kept staring in the direction of Uribe’s table.  After this brief confrontation they returned to their seats and Anderson went to the men’s restroom, which was located near Uribe’s table.  Anderson turned around after using the toilet and was punched “square in the lip.”  He fell to the ground and tried to look up to see who had punched him.  His assailant then started kicking the left side of his body.  Anderson testified that he was able to see that a man with “darker skin” had assaulted him.  He also testified that he saw Carlson blocking the door, from the inside of the restroom, so that Anderson could not escape.  After the assault stopped, the attacker and Carlson left the restroom.  Anderson then approached the bar and asked the bartender to call the police.  At the same time, Uribe, Carlson, and Uribe’s wife were seen quickly leaving the bar.  A short time later, the police and an ambulance arrived.

A jury convicted Uribe of third-degree assault, pursuant to Minn. Stat. § 609.223, subd. 1 (1998), and fifth-degree assault, pursuant to Minn. Stat. § 609.224, subds. 1(2), 2(b) (1998).  Uribe was sentenced to 30 months in prison for the third-degree assault conviction.  He appeals.

D E C I S I O N

I.

            Uribe asserts that there was insufficient evidence to support his conviction.  The standard for overturning a conviction for insufficiency of the evidence is “a high one.”  State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).  In considering a claim of insufficient evidence, a reviewing court’s only inquiry is whether, on the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  The court must view the evidence in the light most favorable to the prosecution and assume that the jury believed the prosecution’s witnesses and disbelieved any contrary evidence.  Id.  The state need not present evidence that excludes all possibility that another person committed the crime; it need only make such other theories appear unreasonable.  See State v. Anderson, 379 N.W.2d 70, 78 (Minn. 1985).  

Uribe argues that the circumstantial evidence presented by the state was insufficient as a matter of law to prove beyond a reasonable doubt that he assaulted Anderson.  While a conviction based on circumstantial evidence warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as any other evidence as long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997). 

Uribe argues that the evidence does not exclude the rational hypothesis that someone other than Uribe assaulted Anderson because Anderson did not see who his attacker was.  Anderson testified that after he was struck in the face, he attempted to see who had hit him but was immediately kicked while he tried to protect himself on the floor.  He testified that he could only see a person with darker skin and conceded that he could not further identify the person who assaulted him.  But there is adequate circumstantial evidence for the jury to reasonably have concluded that Uribe, and not someone else, committed the assault:  (1) Uribe was with Carlson on the night of the attack, and they had a confrontation with a group of people at the bar, near where Anderson was standing; (2) Uribe was angry and agitated during the confrontation; (3) shortly before the attack, Anderson, Uribe, and Carlson were seen walking in the same direction, toward the restroom; (4) Anderson saw Carlson blocking the door of the restroom during the assault, preventing his escape; and (5) as Anderson, covered with blood, approached the bartender to call the police, Uribe and Carlson were seen together “rushing” out of the bar.

The supreme court has stated that reviewing courts must “recognize that the jury is in the best position to evaluate the credibility of witnesses and assume that, after due consideration, the jurors believed the state’s witnesses.”  State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999) (quotations omitted), cert. denied, 528 U.S. 862, 120 S. Ct. 153 (1999).  Given the evidence and the legitimate inferences that can be drawn from it, the jury could reasonably conclude that Uribe committed the assault.  See Bias, 419 N.W.2d at 484.   

II.

Uribe next contends that the district court erred in failing to define “assault” in its jury instruction on third-degree assault.  District courts possess considerable latitude in selecting the language of jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990).  Although the specific language of jury instructions may vary from case to case, instructions may not materially misstate the law.  State v. Pendleton, 567 N.W.2d 265, 269 (Minn. 1997).  Jury instructions are reviewed to determine whether, taken as a whole, they fairly and accurately explain the law.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  Therefore, an “error in one part of the jury instructions may be cured by other instructions.”  State v. Collins, 580 N.W.2d 36, 43 (Minn. App. 1998), review denied (Minn. Jul. 16, 1998).

Normally, failure to object to a jury instruction at trial waives consideration of the jury instruction on appeal.  State v. Mosley, 414 N.W.2d 461, 465 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987).  Although Uribe did not object at trial, this court may address a claim in the interests of justice if it alleges a fundamental error of law.  State v. LaForge, 347 N.W.2d 247, 251 (Minn. 1984).  Uribe argues that the instruction on third-degree assault given at trial failed to define the term “assault” and was therefore a fundamental error of law.  The instruction stated that the

elements of assault in the third degree are:  First, the Defendant assaulted Mark Vern Anderson.  Second, the Defendant inflicted substantial bodily harm on Mark Vern Anderson. * * * It is not necessary for the State to prove that the Defendant intended to inflict substantial bodily harm, but only that the Defendant intended to commit the assault.

 

Uribe contends that because both the statutory definition of assault and the CRIMJIG contain an intent element, and the instruction given to the jury did not, the conviction must be reversed due to the possibility that the jury convicted him “without determining whether he had the requisite level of intent.”  See Minn. Stat. § 609.02, subd. 10 (1998) (defining assault as an “act done with intent to cause fear in another of immediate bodily harm or death”); 10 Minnesota Practice, CRIMJIG 13.01 (1999) (providing that “whoever does an act with intent to cause fear in another person of immediate bodily harm” is guilty of assault). 

But it is unlikely that the jury was confused and, because of that confusion, based its verdict for third-degree assault on the failure of the court to define assault in the instruction on that charge.  See State v. Carlson, 268 N.W.2d 553, 561 (Minn. 1978) (stating that new trial for inadequate jury instructions will not be granted if it is unlikely jury was confused).  According to the instruction, the jury needed to find that Uribe “intended to commit the assault” in order to find him guilty of that charge.  Also, immediately before giving the third-degree assault instruction, the court gave an instruction on fifth-degree assault that included the statutory definition of assault, including the element of intent.  We conclude that the district court’s instructions, taken as a whole, adequately presented the jury with the applicable law needed for a fair determination of the charges.  See Flores, 418 N.W.2d at 155.     

Affirmed.