This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Wil Isaiah Killian,




Filed May 22, 2001

Klaphake, Judge


Washington County District Court

File No. K0-99-3408


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


Doug Johnson, Washington County Attorney, Robert J. Molstad, Assistant County Attorney, Washington County Government Center, 14949 62nd Street North, Stillwater, MN  55082 (for respondent)


John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Wil Killian challenges his fourth-degree assault conviction for throwing urine at Correctional Officer David Christensen while appellant was incarcerated at the Minnesota Correctional Facility-Stillwater.  See Minn. Stat. § 609.2231, subd. 3(2) (1998) (prohibiting intentional throwing of “bodily fluids” or “feces” at or onto [a correctional] employee”).  Because we conclude that lay testimony provided by Christensen and two other correctional officers was sufficient to prove that the fluid in question was urine, we affirm.


            In considering a sufficiency-of-the-evidence claim, an appellate court must view the evidence in the light most favorable to the verdict and assume the fact-finder credited the state’s witnesses and discredited contrary evidence.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  "[T]he state has the burden of proving beyond a reasonable doubt every element of the offense charged * * *.”  State v. Paige, 256 N.W.2d 298, 303 (Minn. 1977) (citation omitted).

            Appellant claims that the state should not have been allowed to prove by lay witness testimony that the fluid he threw was urine and that expert witness testimony was required to prove that fact.  A trial court’s decision on a lay witness’s competency to give opinion evidence rests

peculiarly within the province of the trial judge, whose ruling will not be reversed unless it is based on an erroneous view of the law or clearly not justified by the evidence.


Muehlhauser v. Erickson, 621 N.W.2d 24, 29 (Minn. App. 2000) (quotations omitted).  Lay witness opinion testimony is limited to

those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.


Minn. R. Evid. 701.

            The three correctional officers’ testimony identifying the fluid as urine satisfies both the personal knowledge and helpfulness to the jury requirements of rule 701.  All three officers testified that they recognized the fluid as urine by its odor and color. Two of the officers testified that appellant himself referred to the fluid as urine during a statement he made at the time that he threw it.  The officers’ testimony was rationally based on their perceptions as humans, most of whom can identify urine by its odor and color.  Further, their testimony was helpful to determine a necessary fact issue, the nature of the fluid.  Admission of their testimony is also supported by appellant’s previous threats to throw urine unless he was transferred to another prison and by his confinement in the segregation unit at the time of the offense, which restricted his access to any other type of fluid.  Under these circumstances, the trial court did not abuse its discretion in admitting the testimony of the correctional officers, and their testimony was sufficient to prove that appellant violated Minn. Stat. § 609.2231, subd. 3(2).  See State v. Walker, 319 N.W.2d 414, 417-18 (Minn. 1982) (no error in allowing deputy sheriff to provide lay opinion that footprints observed at burglary scene matched boots of defendant and defendant’s brother); Sauber v. Northland Ins. Co., 251 Minn. 237, 243, 87 N.W.2d 591, 596 (1958) (lay witness testimony sufficient to prove identity of voice on telephone).

            Appellant relies on two controlled substance cases for his claim that the state was required to provide expert testimony to establish the nature of the fluid in this case.  We conclude that these cases are not controlling.  In State v. Robinson, 517 N.W.2d 336, 338-40 (Minn. 1994), the supreme court concluded that the state’s evidence of random sampling of seven of thirteen packets of cocaine, which amounted to testing of less than nine grams of the cocaine, was insufficient to support a conviction based on possession of more than ten grams.  Robinson rejected the reliability of the evidence itself, extrapolation from random samples to prove weight, noting that scientific testing was necessary to prove that the substance was cocaine, especially where "drug dealers are known to substitute placebos for the real thing."  Id. at 339.  Here, scientific testing and expert testimony was unnecessary to prove that the substance was urine.  In State v. Vail, 274 N.W.2d 127, 133 (Minn. 1979), the supreme court concluded that the state failed to meet its burden to prove that a substance was marijuana where scientific tests on the marijuana did not test for the nature of the substance or its purity and there was no other evidence identifying the marijuana.  Here, the testimony of the three correctional officers identified the substance as urine.                              


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