This opinion will be unpublished and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

C1-00-1663

 

State of Minnesota,

Respondent,

 

vs.

 

Robert Alan Nelson, Jr.,

Appellant.

 

Filed June 12, 2001

Affirmed

Randall, Judge

 

Blue Earth County District Court

File No. K5-99-1424

 

 

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

 

Ross E. Arneson, Blue Earth County Attorney, Government Center, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002 (for respondent)

 

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

 

            Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

 

U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

            This is an appeal from a conviction for second-degree assault.  Appellant argues that there was insufficient evidence to prove that he did not grab a rifle and fire shots into the air in self-defense, to ward off the victim, whom appellant testified was approaching him and appeared to be reaching for a weapon.  Appellant raises additional issues in his pro se brief.  We affirm.

FACTS

            The weekend of July 31, 1999, appellant Robert Alan Nelson went from Minneapolis to Mankato to visit his father and friends and to store his vintage WWII rifle and ammunition at his father's house.  Nelson and his girlfriend were expecting a baby and decided not to have any guns in their home, even though Nelson had served in the army and knew how to safely handle guns.  Before driving to Mankato, Nelson placed the gun in a case under the front passenger seat of his pickup truck and the ammunition in the glove compartment.

            On Saturday evening, Nelson went to a local bar with two friends, Amber Kusick and Travis Aderman, and arranged for a third friend, Jason Smith, to be the designated driver of Nelson's truck because Nelson planned on drinking that evening.  After midnight, Smith picked up Nelson, Kusick, and Aderman from the bar and drove them to Happy Dan's, an all-night convenience store, to buy cigarettes and snacks.  

            At approximately 1:00 a.m., another group of friends, J.B and three others, decided to go to Happy Dan's to buy snacks.  Nelson, Kusick, and Aderman entered the store and encountered J.B. and the others.  J.B. testified that he realized he lost a five-dollar bill when he went to pay for his items, so he left the store to trace his footsteps.  Nelson testified that J.B. stared at him in the store and made him feel afraid.  After making their purchases, Nelson, Kusick, and Aderman returned to the truck where Smith was waiting in the driver's seat.  Nelson and Aderman sat in back, with Nelson behind Smith and Kusick in front.

            Smith testified that as he prepared to back the truck out of the parking stall J.B. and the others walked by the truck and said something.  When he was ready to drive out, they walked in front of the truck again very slowly "like they were being cocky," at which time Kusick told them to use the sidewalk.  Smith testified that they yelled back at Kusick, saying "F-you, you bitch."  The groups started arguing.

            As J.B. and his friends walked away, Nelson continued to yell at them.  J.B. and his friends walked behind the video store away from Happy Dan's and the truck, towards their apartment building, and then returned.  Nelson ordered Smith to stop the truck, which Smith did.  Nelson exited the truck, walked around to the passenger side and took out his gun from under the seat and the ammunition from the glove compartment, loaded the gun, and then raised it in the air for J.B. and his friends to see.  According to Smith, when J.B. and his friends saw the gun, they ran.

            J.B. returned around the corner of the building.  Nelson claims that J.B. made a "furtive glance towards his waistband" and looked like he might be reaching for a gun.  The record indicates no proof at all that J.B. or any of his friends had a gun, nor did anyone testify that they actually saw any kind of a weapon.  It is undisputed that Nelson fired a shot from his rifle.  There is conflicting testimony as to whether Nelson pointed the gun at J.B. or in the air to "discourage any further confrontation," as Nelson testified.

            Nelson got back into the truck and Smith drove to his house where Nelson and Kusick hid the gun and ammunition underneath the trailer.   The police arrived about a half-hour later and recovered the gun and ammunition.  The next day, Nelson was charged with second-degree assault, drive–by shooting, and reckless discharge of a firearm.  The state later added three additional counts of second-degree assault.

            At trial, Nelson argued that he acted in self-defense.  Nelson testified that J.B. made him feel very apprehensive in the store, which intensified outside when Nelson claimed they were making gang signs at Nelson and his friends.  Nelson testified that he did not feel retreat was an option.  Nelson's attorney impeached J.B. when J.B. testified by offering evidence of J.B.'s criminal history, which involved lying to police.

            The jury found Nelson guilty on one count of second-degree assault and reckless discharge of a firearm but acquitted him on the three other counts of second-degree assault and drive-by shooting.  Nelson was sentenced to 36 months in prison.  This appeal follows.

 

D E C I S I O N

I.                   Self-Defense

Nelson argues that his second-degree assault conviction should be reversed because the state failed to prove beyond a reasonable doubt that he did not act in self-defense when he fired his gun in the air to prevent J.B. from assaulting him.  Nelson argues that he had an actual and honest belief that he was in imminent danger of bodily harm and that he took steps to defend against J.B.'s attack.  Nelson asserts that he used only the amount of force necessary to defend himself, which was firing the gun in the air.  He claims he was justified in doing so.

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).  When reviewing a sufficiency of the evidence claim, this court is "limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient" to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted).  The jury has the exclusive function of assessing the credibility of the witnesses.  State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984).  The verdict will not be disturbed if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

Second-degree assault requires an assault with a dangerous weapon.  Minn. Stat. § 609.222, subd. 1 (1998).  A defendant claiming self-defense has the burden of going forward with evidence to support the claim.  State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997).  Once the defense is raised, "the state has the burden of disproving one or more of [the] elements [of self-defense] beyond a reasonable doubt."  Id. (citation omitted).   The elements are

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger. 

Id. at 285 (citations omitted).  See also Minn. Stat. § 609.06, subd. 1(3) (1998).[1]  In self-defense, the degree of force cannot "exceed that which appears to be necessary to a reasonable person under similar circumstances."  Basting, 572 N.W.2d at 286 (citations omitted).  Any use of force beyond that is excessive.  State v. Fidel, 451 N.W.2d 350, 356 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).  In addition, 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). 

            Here, review of the record shows sufficient evidence, giving deference to the jury's role as fact-finder on disputed issues for a jury to reject Nelson's claim of self-defense.  First, Nelson did provoke the situation by getting out of the truck and yelling at J.B. and his friends.  Two of Nelson's friends testified that Nelson was yelling and arguing with J.B. before Nelson got the gun.  Also, as respondent points out, after Nelson saw J.B. come back around the corner, he retrieved his gun and waved it in the air for J.B. and his friends to see.   It is not unreasonable that the jury could perceive these acts as aggressive and provocative.

The third element requires the existence of reasonable grounds for the belief.  Nelson testified that he felt apprehension because of the alleged "gang signs" he saw J.B. make in addition to a "weapons threat" by making a "furtive glance to his waistband."  While this could be construed as an actual and honest belief that he was in imminent danger of death or great bodily harm, the evidence that Nelson's actions were necessary to avert danger is questionable.  Nelson's own testimony says that he fired the gun when J.B. and his friends had gone behind the building.  When J.B. and his group went behind the building, and with no evidence in the record that anyone ever saw a weapon, we cannot say the jury's decision to reject Nelson's claim of self-defense was unreasonable.

Regarding the third element, Nelson never testified that he saw J.B. or anyone in his group display a weapon.  Nelson claimed only that he thought J.B. might have a weapon, and conceded that his surmise was based on a glance at J.B.'s waistband.  We note that two of Nelson's friends testified they were surprised that Nelson pulled out a gun and fired it into the air.

            Finally, the fourth element, namely an absence of a reasonable possibility of retreat to avoid the danger, was rebutted by the state.  The state showed pictures of the convenience store having at least two exits.  Because J.B. and his friends walked in front of Nelson's truck when they were heading toward one of the exits, they backed up to go to the other exit.  When J.B. and the others walked in front of Nelson's truck again at the other exit, they walked past the truck.  Nelson testified that J.B. and his friends had totally left the area and that he felt relief.  Before J.B. returned around the corner, Nelson had reasonable time to leave the scene.  Nelson, however, ordered Smith to stop the car, at which time Nelson exited the car and walked over to the other side of the truck and proceeded to remove his gun and ammunition from the truck.  This is evidence of a reasonable amount of time for Nelson and his friends to drive away.

            The jury, as the resolver of fact issues, could have reasonably found that the state rebutted appellant's claims that he acted in self-defense.

II.                Conviction Based on Emotions and Racism

            Nelson argues in his pro se brief that the jury's conviction was based on emotions and racism, which he claims the prosecution subversively played to the jury.  He asserts that this is evidenced by the conviction.

            Issues not briefed on appeal are waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).

Nelson offers no evidence that the jury convicted him based on racism and emotions, but rather merely asserts that this occurred.  Further, review of the record does not support this assertion.

III.             Inconsistent Verdicts

Nelson raises the argument that because the jury acquitted him of three of the four counts of second-degree assault, he cannot be found guilty of the fourth.  He argues that because he raised the claim of self-defense for all four counts and the jury acquitted him on three of them, and each of the alleged assaults occurred at the same instant, the conviction for the fourth count cannot be upheld based on jurisprudence.  In other words, he is stating that each verdict as to each count has to be consistent with all the others and that one or more acquittals, on separate counts, mandates acquittals on all counts.  We disagree.

First of all, we do not concede that the verdicts are inconsistent.  Juries are instructed by the court to consider each count independently and to apply the essential elements of each count having in mind the presumption of innocence as to each count.  Based on Nelson's testimony, J.B. came out from behind the building alone, and as soon as J.B. saw Nelson with the gun, J.B. retreated back behind the building.   J.B. was the only one to come back around the building after Nelson displayed the gun for the second time and then fired it.  J.B. was the only one in sight when Nelson fired the gun, and therefore it is reasonable that the jury could find Nelson guilty of only one of the four counts of second-degree assault, the count involving J.B., but acquit Nelson on the three counts involving J.B.'s companions.  Even assuming, arguendo, that the verdicts are not consistent, a defendant is not entitled to a new trial or dismissal of a guilty verdict simply because the verdict may seem inconsistent with the same jury's not guilty verdict on another count.  State v. Juelfs, 270 N.W.2d 873, 873-74 (Minn. 1978).  The jury's rendering inconsistent verdicts could show that the jury exercised leniency.  See Nelson v. State, 407 N.W.2d 729, 731 (Minn. App. 1987) (stating on issue of inconsistent verdicts that jury has right to exercise lenity), review denied (Minn. Aug. 12, 1987).  "Thus, the focus is not upon the inconsistency of the acquittals, but upon whether there is sufficient evidence to sustain the guilty verdict."  Id. (citation omitted).

IV.              Jury Instructions

Nelson claims that the jury received incorrect jury instructions in response to two questions from the jury during deliberations.  Nelson says that these answers were inappropriate, and therefore warrants a reversal. 

According to the transcript, the jury asked the judge:

We are in need of a better definition of assault and self-defense.  * * *  If he's guilty of any other charges, can we find him guilty of Reckless Discharge of a Firearm?  Thank you.

 

The judge then reread the jury instructions already given for assault and self-defense.  The judge responded to the second question:

[Y]ou should answer all of the verdict questions and leave it to the Court to determine what disposition to make of your answers.  So answer guilty or not guilty as to all five verdict or charges.

 

No objections to these instructions were raised at trial or post-trial.  The instructions were given pursuant to 10 Minnesota Practice, CRIMJIG 7.06, 7.08 (1999).  The instructions properly stated that the state had the burden of proving beyond a reasonable doubt that Nelson did not act in self-defense, in addition to the definitions of self-defense and assault.  We conclude that the district court did not err in giving the instructions.

V.                 Coercion

            Nelson lastly raises the defense of coercion on appeal in his pro se brief.  This defense was never raised at trial.  Issues not raised and addressed below are generally not reviewed on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  This issue is not properly before this court.  In addition, in examining the record, the defense of coercion is not applicable to these facts.

            Affirmed.



[1] Minnesota law authorizes the use of force in certain circumstances:

 

[R]easonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist:  * * * when used by any person in resisting or aiding another to resist an offense against the person.

 

Minn. Stat. § 609.06, subd. 1(3).