This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





O.D. Larkins, Jr.,



Filed June 5, 2001


Kalitowski, Judge


Hennepin County District Court

File No. 99000941


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


Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


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


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

U N P U B L I S H E D   O P I N I O N


            Appellant O.D. Larkins challenges his conviction of second-degree manslaughter, arguing that the evidence was not sufficient to establish that appellant consciously disregarded a known risk of harm to the victim.  Appellant also contends the district court abused its discretion in precluding the defense from impeaching two prosecution witnesses with prior incidents of misconduct.  We affirm.



            In considering a claim of insufficient evidence, this court, viewing the evidence in the light most favorable to the conviction, makes a painstaking review of the record to determine whether there was sufficient evidence to permit the jurors to reach their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court must assume the jury believed the state’s witnesses and disbelieved contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  Finally, “if the jury, acting with due regard for the presumption of innocence” and the requirement of proof beyond areasonable doubt, reasonably concluded the defendant was guilty of the charged offense, its verdict will not be disturbed on appeal.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (citation omitted).

            Appellant contends the evidence that while intoxicated he repeatedly kicked the victim was not sufficient to sustain his conviction of second-degree manslaughter because respondent did not prove beyond a reasonable doubt that appellant consciously disregarded the risk to the victim.  We disagree.  The offense of second-degree, culpably negligent manslaughter is “an offense that involves both the objective element of negligence and the subjective element of recklessness,” State v. Grover, 437 N.W.2d 60, 63 (Minn. 1989) (citations omitted), and to establish the subjective element of recklessness the state must prove “an actual conscious disregard of the risk created by the conduct.”  State v. Frost, 342 N.W.2d 317, 320 (Minn. 1983).

            On appeal, appellant concedes that the evidence was “technically sufficient” to prove his conduct was negligent, but contends the jury could not have found that he consciously disregarded the risk to the victim because he was “severely intoxicated.”  We disagree. 

[W]hen a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind. 


Minn. Stat. § 609.075 (2000) (emphasis added); see also State v. Wahlberg, 296 N.W.2d 408, 418 (Minn. 1980) (holding presumption of incapacity to form intent to commit murder not created by possibility of intoxication).  Intoxication is merely one of the facts that a jury may consider in determining a defendant’s intent.  State v. Hale, 453 N.W.2d 704, 707 (Minn. 1990).  

            At trial appellant’s defense was that he was too intoxicated to even physically connect on attempts to kick the victim’s body.  But a defense witness testified that although appellant was very intoxicated, he was moving around “pretty decent.”  Moreover, the record indicates appellant had the presence of mind, first, to pull the victim off his brother when the fight initially erupted, and second, to involve himself in the fight between the victim and his brother once the fight moved outside the residence.  Finally, a prosecution witness testified that appellant admitted he actively participated in the victim’s death.  We conclude that the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did.


            We will not disturb a district court’s evidentiary rulings unless the district court abused its discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  A primary right guaranteed by the Confrontation Clause, however, is the opportunity to cross-examine and impeach witnesses.  State v. Pride, 528 N.W.2d 862, 865 (Minn. 1995).  Appellant contends the district court deprived him of his right of confrontation when it prevented him from impeaching two of the witnesses for the prosecution.  We disagree.

            The first prosecution witness was the alleged victim in a criminal-sexual assault case that was eventually dismissed.  Appellant argues he was prepared to bring in witnesses to prove the case was dismissed because of the witness’s dishonesty.  The district court did not allow appellant to impeach the witness with the dismissed case because it was not “persuaded that the only reason that the case was dismissed was because of” the witness’s dishonesty.  We conclude that this ruling was not an abuse of discretion.  Moreover, we note that appellant was allowed to impeach the witness with two convictions for attempted check forgery, prior inconsistent statements regarding her involvement with the murder, and testimony that she fled the state after the incident and told an investigator she would “take the fifth” if forced to testify.

            Appellant also introduced evidence to impeach a second prosecution witness, who was held in the same prison cell with appellant.  The district court ruled that convictions for check forgery, a 1997 kidnapping, and a conviction for first-degree assault were admissible for impeachment purposes but when appellant attempted to ask the witness if the assault conviction was one involving “great bodily harm,” the court sustained respondent’s objection and ruled that naming the charge was “sufficient without going into the definition of the charge.”  When appellant argued that he wanted to question the witness’s motive for testifying, the court maintained its ruling but allowed appellant to question the witness regarding his motive, including questions that implied the witness was hoping to reduce his prison sentence. 

            On appeal, appellant now claims that it was

vitally important for the jury to know that the witness’s assault conviction involved infliction of great bodily harm in light of the witness’s repeated insistence that his only motivation for testifying against [appellant] was his belief that “murder is murder and I feel that is wrong.”


Although the examination of a witness may include an inquiry into the nature of the conviction, State v. Norgaard, 272 Minn. 48, 51 136 N.W.2d 628, 631 (1965), allowing such an inquiry is within the district court’s discretion.  Id.  Based on the record here we conclude the district court’s ruling was not an abuse of discretion.