This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Timothy Guy Jones,




Filed January 15, 2002

Foley, Judge


Hennepin County District Court

File No. 00070754



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


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


Kevin J. Short, 333 South Seventh Street, Suite 2890, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges his conviction of second-degree unintentional murder, arguing that the evidence was insufficient to disprove his self-defense claim because the evidence demonstrated that he attempted to retreat, and the victim continued to assault him.  Appellant also argues that the district court abused its discretion by refusing to give the jury appellant’s proposed theory of the defense instruction.  Because we conclude that the evidence was sufficient to support appellant’s conviction, and the jury instructions, coupled with appellant’s arguments to the jury, adequately conveyed appellant’s theory of the case, we affirm.


            At approximately 10:00 p.m. on July 21, 2000, the victim, Adem Ostendorf, along with Dylan Emelianoff and several others, including 16-year-old C.D., drove to a party where they encountered appellant Timothy Guy Jones.  Emelianoff and appellant had met earlier that summer, and Emelianoff invited him to his residence.

            Carla Ostendorf, the victim’s wife, and C.D. testified that appellant offended everyone that night.  At one point, appellant called Ostendorf a derogatory name.  Emelianoff testified that he was angered by appellant’s comment, insisted appellant apologize, and appellant complied.  At one point, the victim ripped off his own shirt and challenged appellant to fight if appellant did not leave because he had woken up the victim’s baby.  C.D. testified that soon after, he escorted appellant out the side door in the kitchen and locked the door behind him.  Witnesses stated that they heard loud noises on the back stairs.  As one person opened the door, witnesses saw appellant standing on the stairs.  Ostendorf testified that she saw something silver in appellant’s hands.  C.D. testified that he saw appellant waving a knife with a black handle and that he made a threatening statement about stabbing someone.  The victim backed appellant down the stairs and into the yard.

Once in the yard, the victim picked up an empty five-gallon plastic construction bucket and began swinging it at appellant.  C.D. testified that the victim hit appellant one or two times with the bucket while telling him to leave the property, but appellant did not leave.  A witness also stated that the victim tossed the bucket in the yard and continued in his attempts to get appellant to leave.  Ostendorf testified that she saw a silver utility tool in appellant’s possession and that he made jabbing motions toward the victim.  She also testified that the victim said, “[H]’s trying to stab me.  Carla, he’s got a Gerber.”[1]  The witnesses stated that the victim backed appellant into the street.  Ostendorf went inside to check on her baby, leaving C.D., the victim, and appellant outside.  As the three were traveling down the street, C.D. saw the victim turn around, bleeding from his chest.  Appellant then ran a couple of blocks to a friend’s house, discarding the knife in a dumpster along the way, and eventually discarded the clothes he was wearing.

Appellant turned himself in a few days after the incident, after he learned that the victim had died.  He was charged with second-degree intentional murder under Minn. Stat. § 609.19, subd. 1(1) (1998), and second-degree unintentional murder under Minn. Stat. § 609.19, subd. 2(1) (1998), relying on assault with a deadly weapon as the underlying offense.  At trial, appellant asserted self-defense and requested that the district court give the jury a theory of the defense instruction that appellant’s attorney had drafted.  The court denied the request and gave the jury three instructions relating to self-defense.  Also at trial, it became apparent that C.D., the state’s only witness to the stabbing, had been drinking.  Outside the jury’s presence, the court asked C.D. if he had been drinking that day or the previous night, and he answered no to each question. The court ordered C.D. to take a preliminary breath test, which revealed a blood-alcohol level of 0.02.  The parties stipulated to the information the court read to the jury regarding C.D's alcohol consumption.  The court informed the jury that C.D. had consumed alcohol the night before he testified and that some alcohol remained in his system while he was on the witness stand.  The court did not tell the jury that C.D. had lied to the court about his alcohol consumption.

            Following trial, the jury found appellant guilty of second-degree unintentional murder, and he was sentenced to 125 months in prison.  Appellant now challenges his conviction.


I.  Perjury of State’s Witness

            In his brief to this court, appellant argued that he is entitled to a new trial because the district court erred in not informing the jury that C.D. had lied to the court during the trial about his alcohol consumption.  At oral argument, however, appellant conceded this issue with “resigned acquiescence.”  Based on appellant’s concession, we do not address this issue on its merits.  We note, however, that appellant had free rein to cross-examine C.D. about his alcohol consumption.  Further, appellant stipulated to the statement that the court read to the jury about C.D’s consumption and never voiced any reservation or objection.

II.        Sufficiency of the Evidence

Appellant argues that the state’s evidence was insufficient to prove that the stabbing was intentional and that he was not acting in self-defense.

In considering a claim of insufficient evidence, an appellate 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, was sufficient to allow the jury to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The appellate court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Erickson, 449 N.W.2d 707, 709 (Minn. 1989); State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The appellate 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).

The jury found appellant guilty of second-degree unintentional murder.  This crime requires one to cause “the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense.”  Minn. Stat. § 609.19, subd. 2(1) (1998) (emphasis added).  Based on the charge for which appellant was convicted, the state did not have to demonstrate that the killing was intentional.  Instead, the state was required to show that appellant caused the victim’s death while committing or attempting to commit a second-degree assault with a dangerous weapon.  Assault is defined as an act performed with the “intent to cause fear in another of immediate bodily harm or death” or “[t]he intentional infliction of or attempt to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10 (1998).  There is no dispute that appellant was holding the knife that inflicted the stab wound and that the victim died as a result.  Appellant testified that he pulled the knife in order to tell the victim to “get the hell away from me because I have a knife.”  There is no dispute that appellant inflicted the injury that caused the victim's death, immediately fled the scene, disposed of the knife, and later disposed of his clothes.  This evidence is sufficient for the jury to find that appellant guilty of second-degree unintentional murder. 

Regarding self-defense, appellant focuses his argument on the assertion that the victim could not have discarded the bucket before he followed appellant into the street.  In making this argument, appellant essentially is challenging the credibility of the state’s witnesses.  Thus, the jury had to determine whether it believed the state’s witnesses or appellant’s version of the events.  Deciding witnesses’ credibility is generally within the jury’s exclusive province.  State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999).  Further, in order to prevail on a claim of self-defense, three conditions must be met:  (1) the killing must have been based on the defendant’s belief that it was necessary to avoid great bodily harm or death; (2) the defendant’s judgment of the gravity of the peril he was exposed to must have been reasonable under the circumstances; and (3) the defendant’s decision to kill must have been reasonable in light of the perceived danger.  State v. Gray, 456 N.W.2d 251, 257 (Minn. 1990).  If the state proves beyond a reasonable doubt the nonexistence of any of these conditions, a defendant cannot prevail on a claim of self-defense.  Id. 

Based on the evidence, the jury could have rejected appellant’s self-defense claim on several grounds.  First, the jury could have determined that appellant was the initial aggressor who did not make a good-faith effort to retreat from the incident and therefore could not claim self-defense.  If appellant was the aggressor, then he would lose the right to claim self-defense unless the evidence demonstrates “a good-faith intention to withdraw from the affray and must remove any just apprehension or fear the original victim may be experiencing.”  Bellcourt v. State, 390 N.W.2d 269, 272 (Minn. 1986) (citation omitted).  The state’s witnesses testified that appellant was the aggressor.  Ostendorf testified that appellant held something silver in his hand when she observed him on the back stairs after he was asked to leave the house.  C.D. specifically testified that appellant had a knife while on the back stairs.  Both witnesses testified that the victim was trying to get appellant to leave the property, but appellant was not abiding by these repeated requests.  Appellant’s actions, either with something silver in his hand as Ostendorf testified, or a knife as C.D. testified, along with his unwillingness to leave the premises, provides sufficient evidence for the jury to determine that appellant was the initial aggressor.  Further, appellant admitted on cross-examination that there were many ways he could have retreated from the confrontation.  Taken together, this testimony provided sufficient evidence for a jury to determine that appellant was the initial aggressor who did not make a good-faith effort to retreat, and therefore could not claim self-defense.

Second, even if the jury determined that the victim was in possession of the bucket when he followed appellant into the street and that appellant was not the initial aggressor or, even if he was, that he made a good-faith effort to retreat, appellant’s actions in pulling the knife to protect against the bucket must have been reasonable to prevent appellant’s exposure to great bodily harm or death.  Great bodily harm

means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.


Minn. Stat. § 609.02, subd. 8 (1998).  The construction bucket was not likely to cause this type of injury.  Thus, by its verdict, the jury could have determined that it was unreasonable for appellant to believe that a bucket would have caused him great bodily harm and determined that appellant could not claim self-defense.

            In addition, by its verdict, the jury could have determined that it was unreasonable for appellant to elect to defend himself in light of the danger perceived and the alternative ways of avoiding the peril.  Appellant had many opportunities to leave the area that night.  Even when he and the victim were in the street, nothing prevented him from running down the street in either direction in order to avoid the peril.  Appellant testified that after the incident he ran a couple of blocks to his friend’s house.  After hearing this testimony, the jury could have determined that appellant’s actions were unreasonable in light of alternative ways to avoid the peril (e.g., running to appellant’s friend’s house) that were within walking distance of the incident.   

The state’s case relied on witnesses’ testimony, and appellant’s entire argument hinges on their credibility.  It is not this court’s role to evaluate witness credibility; such determinations are left to the jury.  Doppler, 590 N.W.2d at 635.  Viewing the evidence in the light most favorable to the conviction, there is sufficient evidence on which the jury, acting with due regard to the presumption of innocence and proof beyond a reasonable doubt, could rely on to support the conviction.

III.       Theory of the Defense Instruction

Appellant argues that he is entitled to a new trial because the district court refused to give the requested theory of the defense instruction to the jury.  Appellant contends that the court’s instructions misstated the law and caused the jury to misunderstand the self-defense theory and the law as it applied to the crucial facts of the case.  Appellant further argues that his requested theory of the defense instruction would have clarified for the jury what happened at the precise moments before the stabbing.

The refusal to give a requested jury instruction rests within the district court’s discretion, and no error results absent abuse of that discretion.  State v. Persitz, 518 N.W.2d 843, 848 (Minn. 1994).  On review, an appellate court must view the jury instructions in their entirety to determine whether they fairly and adequately explain the law.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  A defendant is entitled to an instruction on his or her theory of the case if there is evidence to support it, but if the court determines that the substance of the defendant’s request is contained in the court’s charge, it need not give the requested instruction.  Persitz, 518 N.W.2d at 848.

Appellant’s requested jury instruction was as follows:

It is the theory of the defense that as Timothy Guy Jones was leaving 3416 Columbus [the victim] attacked Jones with a bucket. The defense further contends that Jones repeatedly informed [the victim] that he did not want to fight and was trying to leave.  The defense contends that [the victim] repeatedly assaulted Jones and refused to allow Jones to leave.  Jones contends that he displayed his utility knife for the sole purpose of persuading [the victim] to stop assaulting him and allow him to leave.  The defense contends that after Jones displayed his utility knife [the victim] continued to assault Jones with the bucket and chased Jones south on Columbus.  Finally the defense contends that Jones did not intend to kill, stab or assault [the victim].


Unless you are convinced beyond a reasonable doubt that the theory of the defense is false, you must acquit Timothy Guy Jones of all charges against him.  Having said that, you must remember that the entire burden of proving the Defendant’s guilt is always on the State and that the Defendant never has to prove his innocence.


In ruling on appellant’s request, the district court stated that it reviewed the relevant caselaw and decided not to give appellant’s requested instruction because it merely restated the main points the court expected the parties to give at closing.  The court’s specific instructions related to self-defense were:

No crime is committed when a person takes the life of another person even intentionally if the defendant’s action was taken in resisting or preventing an offense the defendant reasonably believed exposed the defendant to death or great bodily harm. In order for a killing to be justified for this reason three conditions must be met.  First, the killing must have been done in the belief that it was necessary to avert death or great bodily harm.  Second the judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances.  Third, the defendant’s election to defend must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way of avoiding the peril.  All three conditions must be met.


Self-defense is a defense to both counts of murder, and the offense of assault in the second degree contemplated by Count 2, Unintentional Murder in the Second Degree.[2]


The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.


* * *  If the defendant began or induced the incident that led to the necessity of using force in the defendant’s own defense, the right to stand the defendant’s ground and thus defend himself is not immediately available to him.  Instead the defendant must first have declined to carry on the affray and have honestly tried to escape from it, and must clearly and fairly have informed the adversary of a desire for peace and abandonment of the contest.  Only after the defendant has done that will the law justify the defendant in thereafter standing his ground and using force against the other person.


* * *  The legal excuse of self-defense is available to those who act honestly and in good faith.  This includes the duty to retreat or avoid the danger if reasonably possible.


            The instructions repeated, almost verbatim, the standard jury instructions for self-defense in criminal trials.  See 10 Minnesota Practice, CRIMJIG 7.05, 7.07, 7.08 (setting forth applicable self-defense instructions).[3]  Appellant agreed that these were the instructions the court should give the jury.  Even though the jury was not given appellant’s requested instruction, appellant’s counsel argued his theory to the jury in both opening and closing statements.  Further, the jury was instructed that, in order to convict appellant of second-degree unintentional murder, it must find that appellant caused the victim’s death, without intending to do so, while committing or attempting to commit second-degree assault with a dangerous weapon against the victim.  The jury was informed that a dangerous weapon was

anything designed as a weapon and capable of producing death or great bodily harm or anything else that in the manner it is used or intended to be used is known to be capable of producing death or great bodily harm.


            Given the court’s instructions in context of the entire case, along with appellant’s arguments to the jury, any deficiency in the self-defense instruction was not prejudicial.  See State v. Sanders, 376 N.W.2d 196, 201 (Minn. 1985) (concluding district court’s self-defense instruction, which was based on CRIMJIG 7.05, was not prejudicial when viewed in context of entire case, including counsel’s arguments, even though defendant claimed killing was unintentional).  The court’s instructions adequately explained the law that should be applied to the case.  As appellant admitted at trial, this case was not unusually complex.  Based on the lack of complexity, the arguments presented by appellant, and the evidence presented at trial, additional instructions were unnecessary.    Further, if the court had given the requested instruction to the jury, it would have amounted to a court-sponsored closing argument.  See Persitz, 518 N.W.2d at 849 (cautioning against district courts giving instructions to jury that contain blend of facts and law that would amount to court-sponsored argument).  The district court did not abuse its discretion by denying appellant’s request to give the jury his proposed theory of the defense instruction.



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

[1] As used here, a Gerber is a type of utility tool with several attachments, which may include pliers, scissors, and knife blades.

[2] The district court did not give the jury a definition of assault, but this is not an issue on appeal.  Although the jury requested a definition right before reaching its verdict, appellant’s counsel asserted that giving the jury the definition at such a crucial juncture might cause more harm than good because it may call undue attention to the assault.  There is no error.

[3]  The supreme court has cautioned that district courts must use “analytical precision” when instructing the jury on self-defense.  State v. Hare, 575 N.W.2d 828, 833 (Minn. 1998) (citations omitted).  The court has cautioned that CRIMJIG 7.05 (self-defense, causing death) is inappropriate in cases where the defendant asserting self-defense claims that the killing was unintentional and that courts should instruct the jury using CRIMJIG 7.06 (self-defense, death not the result).  Id.; see also State v. Edwards, 343 N.W.2d 269, 277 (Minn. 1984) (noting CRIMJIG 7.05 is useful only when defendant intended the death).  The supreme court has further counseled that it would grant a new trial if the court believed the defendant was prejudiced by the district court’s use of CRIMJIG 7.05 rather than CRIMJIG 7.06 even if the defendant did not object to the instructions at trial.  State v. Marquardt, 496 N.W.2d 806, 806 (Minn. 1993).  Appellant, however, has not raised this argument on appeal, and, based on our review of the jury instructions, we conclude that appellant was not prejudiced by the court’s use of CRIMJIG 7.05.