This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Moses Abdallah Wazwaz,



Filed ­­­October 23, 2001


Mulally, Judge*


Hennepin County District Court

File No. 68832



Daniel C. Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)


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


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



            Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges his conviction for assault during burglary, arguing that the evidence was insufficient and that the district court abused its discretion in excluding evidence of the victim’s prior charges of theft by swindle and false representation.  Because we see ample evidence to support the conviction and no abuse of discretion in the exclusion of the evidence on unrelated charges brought against the victim, we affirm.



Laura Ellingsworth and her boyfriend, Joseph LaMere, were talking in the bedroom of a first-floor apartment about 2:30 a.m. on June 10, 2000, when appellant Moses Wazwaz, Ellingsworth’s former boyfriend, appeared at the window.  Appellant testified that he slipped from the window ledge and accidentally pushed in the screen when he tried to break his fall.  LaMere testified that appellant broke the screen, thrust his head and torso through the window, and threatened to kill LaMere.  Two other witnesses corroborated LaMere’s account. Appellant was charged with three counts of first degree burglary for entering the apartment and violating an Order for Protection, making terroristic threats, and committing an assault. 

During trial, appellant sought to introduce evidence that LaMere had been charged with theft by swindle and theft by false representation in connection with a dispute over a bill for car repairs.  The charges were dismissed.  The district court refused to permit appellant’s attorney either to introduce evidence of the charges or to question LaMere about the incident.

The jury convicted appellant on two counts of burglary in the first degree: making terroristic threats inside an occupied dwelling and assaulting someone inside an occupied dwelling.  Appellant’s motions for JNOV or a downward dispositional departure were denied and he was sentenced to the presumptive 48 months.

On appeal, appellant contends that the evidence was insufficient to support the jury’s verdict that he committed assault and that the district court abused its discretion in excluding evidence of the charges against LaMere.



1.         Sufficiency of the Evidence

            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  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 conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W. 2d 754, 756 (Minn. 1988).

            Appellant was charged under Minn. Stat. § 609.582, subd. 1(c) (2000), which holds that it is burglary in the first degree to enter a building without consent and with intent to commit a crime and assault a person within the building.  Minn. Stat. § 609.224, subd. 1 (2000), holds that misdemeanor assault includes committing an act with intent to cause fear in another of immediate bodily harm or death.  State v. Olson, 382 N.W. 2d 279, 282 (Minn. App. 1986) provides that misdemeanor assault can support a conviction under Minn. Stat. § 609.582, subd. 1(c).  Therefore, our question is whether the evidence was sufficient for the jury to conclude that appellant committed an act with intent to cause his victims to fear immediate bodily harm or death.[1] 

            LaMere testified:

I heard a loud “Joe’ and then a boom. The screen fell out of the window.  The fan [in the window] fell down.  Everything on the vanity mirror [table in front of the window] fell away, and then I saw [appellant] coming through the window and said, ‘You * * *.  I’m going to kill you.’ 

* * * *

[Ellingsworth] then got towards the door, let herself out, and [appellant] said, * * * “I’m going to go to my car and get my gun and * * * kill you.”

And I said, “Oh, yeah? I will meet you outside then.”  

Appellant contends that the harm was not immediate because La Mere was several feet away and appellant was hanging halfway through the window when he made the threat.[2]  But the statute requires only that appellant acted with the intent to cause fear of immediate bodily harm, and intent may be determined from words, actions, and surrounding circumstances.  See State v. Kastner, 429 N.W. 2d 274, 275 (Minn. App. 1998).   Appellant’s acts in first breaking through the window, then stating that he would go to his car, which was parked just outside the building, get his gun, and return to shoot LaMere imply an intent to cause fear in LaMere of immediate bodily harm.  Assuming as we must that the jurors believed LaMere,  see Moore, 438 N.W. 2d at 108, we conclude that the jury could reasonably have found that appellant was guilty of assault and had violated Minn. Stat. § 609.582, subd. 1(c).

2.         Exclusion of Evidence

            Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W. 2d 807, 813 (Minn. 1989).  The scope of cross-examination is left largely to the district court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Parker, 585 N.W. 2d 398, 406 (Minn. 1998).  Appellant contends that the district court abused its discretion in excluding both evidence of the charges brought against LaMere and in cross-examination of LaMere on the underlying incident.

Appellant relies on Minn. R. Evid. 608 (b), which gives court’s discretion to permit cross-examination of a witness on incidents “probative of truthfulness or untruthfulness.”  The incident here concerned LaMere’s stopping payment on a check in a billing dispute, and the court found the incident was outside the scope of  the rule.  Appellant provides no support for the view that stopping payment on a check in a billing dispute is probative of truthfulness or untruthfulness.  There was no abuse of discretion in excluding evidence of the charges or the underlying incident.



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

[1] Our question is not whether the victims were actually frightened, because the intent of the actor, not the effect of the act on the victim, determines whether an assault occurred.  See State v. Hough, 585 N.W. 2d 393, 396 (Minn. 1998).

[2] We note that this argument conflicts with appellant’s testimony at trial, when he answered “No” to the question, “Did you ever pull your body inside of the window to any degree?”