This opinion will be unpublished and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

C0-01-692

 

State of Minnesota,

Respondent,

 

vs.

 

Linda Kay Mitchell,

Appellant.

 

Filed December 26, 2001

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 00079340

 

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

 

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

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Hanson, Judge.


U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant challenges her conviction of second-degree assault, arguing that the district court erred in instructing the jury on self-defense and defense of dwelling by referring to “deadly force” when death did not result.  We affirm.

D E C I S I O N

 

             The district court is afforded considerable latitude in choosing the language of jury instructions, provided that the instructions do not materially misstate the law.  State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997).  A jury instruction must be viewed in its entirety to determine whether it fairly and adequately explained the law of the case.  State v. Broulik, 606 N.W.2d 64, 68 (Minn. 2000).  An instruction is erroneous if it materially misstates the law.  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001). 

            Appellant argues that the deadly-force language in the jury instructions was improper because she did not take a life, and the state only charged her with second-degree assault.  We disagree.

The court instructed the jury as follows:

 

The defendant is not guilty of a crime if the defendant used reasonable force against Sadija Karic to resist an offense against the person, and such offense was being committed or the defendant reasonably believed it was. 

 

            It is lawful for a person who is being assaulted and who has reasonable grounds to believe that bodily injury is about to be inflicted upon the person to defend from an attack.  In doing so, the person may use all force and means that the person reasonably believes to be necessary and that would appear to a reasonable person in similar circumstances to be necessary to prevent an injury that appears to be imminent. 

           

            The kind and degree of force a person may lawfully use in self-defense is limited by what a reasonable person in the same situation would believe to be necessary.  Any use of force beyond that is regarded by the law as excessive.  The use of deadly force is not authorized except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor to great bodily harm or death. 

 

            The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.  The rule of self-defense does not authorize one to seek revenge or to take into his or her own hands the punishment of an offender.  The defendant is not guilty of a crime if the defendant believed that she was preventing the commission of felony terroristic threats in her home and the defendant’s belief was reasonable under the circumstances and the use of deadly force was reasonable under the circumstances in light of the danger then to be apprehended. 

 

            The state has the burden of proving beyond a reasonable doubt that the defendant did not act in defense of dwelling.

 

            “Deadly Force” means force which the actor uses with the purpose of causing death, or which the actor should reasonably know creates a substantial risk of creating death or great bodily harm.  The intentional discharge of a firearm in the direction of another person constitutes deadly force.

 

            Because appellant discharged a firearm in the direction of the victim, and because caselaw supports the court’s jury instructions, we conclude that the district court did not materially misstate the law.  See Pendleton, 567 N.W.2d at 268 (stating that reasonable force “includes deadly force only when offense against a person involves great bodily harm or death or is used to prevent the commission of a felony in one’s home”).

            In addition, even if the district court’s jury instructions were erroneous, we conclude that any error was harmless.  An erroneous jury instruction is harmless if, beyond a reasonable doubt, the error had no significant impact on the verdict.  Id. at 270. 

            Here, if the jury believed appellant’s contention that she held the gun upright and only discharged it accidentally, the jury could not have found that she used deadly force because there would be no evidence of intentional force, and appellant’s act of getting the gun did not create a substantial risk of death or great bodily harm.  Thus, under the facts as argued by appellant, the deadly-force language would be inapplicable and have no effect on the jury’s verdict. 

            Affirmed.