This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Jeff Parker,



Filed June 4, 2002

Klaphake, Judge


Hennepin County District Court

File No. 01001416


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


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


John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


            Jeff Parker appeals from his conviction for aiding first-degree burglary (committing an assault while in a dwelling) and third-degree assault (assault involving infliction of substantial bodily harm).  Minn. Stat. §§ 609.582, subd. 1(c), .05, .223, subd. 1 (2000).  He argues that the district court committed plain error by failing to properly instruct the jury on the elements necessary to prove first-degree burglary.  Because the instructions adequately informed the jury on the elements of the charged offenses and because any flaw in those instructions had little effect on the jury’s ultimate verdict, we affirm.


            “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.”  State v. Charles, 634 N.W.2d 425, 430 (Minn. App. 2001) (quotation omitted).  Where, as here, a defendant fails to object to the jury instructions, a reviewing court may grant a new trial only if there was “plain error affecting substantial rights.”  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001); State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

            Appellant argues that the district court erred by failing to instruct the jury on the definition of simple assault, particularly on the requirement of intent.  The state concedes that the district court failed to “refer the jury to the definition of third degree assault” as the predicate felony necessary to find appellant guilty of first-degree burglary, but argues that the instructions as a whole were accurate because the instructions on third-degree assault included intent as an element.  See State v. Richardson, 633 N.W.2d 879, 885 (Minn. App. 2001) (on review, no reversible error in jury instructions, if, considered as a whole, instructions accurately state law).

            The district court instructed the jury as follows on the definition of first-degree burglary:

“That whoever enters a building” – and for purposes of this case this apartment of [the victim] - is a building – “whoever enters an apartment, whoever enters a building without the consent of the person in lawful possession, and assaults another within the building is guilty of a crime.”


The court continued:

Now in order to find [the Defendant] guilty of that offense you must find that each element of the offense has been proven beyond a reasonable doubt.  Well, the elements of Burglary in the First Degree are:  First, that the Defendant entered a building without the consent of the person in lawful possession.  Second, that the Defendant assaulted a person within the building.  And third, that the Defendant’s act took place on or about January 4, 2001, in Hennepin County.


These instructions tend to follow the jury instruction guide.  10A Minnesota Practice CRIMJIG 17.01, 17.02 (1999).

            The court then defined third-degree assault as:  “That whoever assaults another person and inflicts substantial bodily harm is guilty of a crime.”  The court continued:

The elements of Assault in the Third Degree are:  First, that the Defendant assaulted [the victim].  Second, that the Defendant inflicted substantial bodily harm on [the victim].


* * *

It is not necessary for the State to prove that the Defendant intended to inflict substantial bodily harm, but only that the Defendant intended to commit an assault.  Third, that the Defendant’s act took place on January 4th, 2001, in Hennepin County.


These instructions are a correct statement of the law.  See 10 Minnesota Practice CRIMJIG 13.15, 13.16 (1999).

           We agree that district courts are generally well-advised to follow the language of the CRIMJIG’s and that the instructions in this case could have been better-worded.  We nevertheless conclude that when the instructions here are read in their entirety, the jury was adequately instructed on the elements of third-degree assault and first-degree burglary.  See Richardson at 886 (finding no reversible error, where elements of offense are mention in “separate section of the instructions”).

           In a recent case from this court, the defendant was convicted of felony murder with the predicate felony being second-degree assault.  Charles, 634 N.W.2d at 431.  On appeal, this court held that the district court committed reversible error by failing to instruct the jury on the definition of assault, despite several requests by the jury for such an instruction.  We find Charles wholly distinguishable from this case, because the instructions in Charles were obviously confusing and inadequate, given the jury’s repeated requests for clarification of the instructions, and because the defendant in Charles was charged only with felony murder and no separate instructions were given on assault.

           Moreover, we do not believe that appellant’s fundamental rights were affected.  A defendant has a “heavy burden” to show that erroneous instructions were so prejudicial that “there is a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.”  Griller, 583 N.W.2d at 741 (quotation and footnote omitted).

            The evidence presented at trial showed that the victim was attacked in his apartment by three people after they kicked his door down.  The victim immediately recognized one of his assailants as appellant, a man he had known for some time.  The victim further testified that he had allowed appellant’s girlfriend to stay at his apartment the previous weekend after appellant had asked him to take her in because she had no where else to go.  The victim testified that during the attack, appellant kept asking the victim where his girlfriend was and why the victim had stolen from her.  Within a short time after the assault, police arrested appellant a few blocks away.

            While appellant denied attacking the victim or being in his apartment that night, three prosecution witnesses, including the victim, a neighboring resident, and the resident’s friend, all placed appellant at the scene of the assault.  When appellant took the stand, he admitted that he was a drug dealer and admitted knowing appellant and his neighbor, because they had purchased crack cocaine from him.  Appellant further testified that he and his girlfriend had stayed at the victim’s and the neighbor’s apartments on various occasions.

            Appellant never claimed that the victim had not been assaulted.  Nor did he claim that the victim’s injuries, which included a broken cheekbone, an eye hemorrhage, and multiple shoulder contusions, and which the parties stipulated to constitute substantial bodily harm, were caused by anything other than an assault.

            Given this evidence, there is little or no likelihood that any error in the jury instructions prejudiced appellant or had an adverse effect on the jury’s verdict.  The verdict was clearly based on credibility determinations, particularly on the jury’s rejection of appellant’s claimed alibi and its acceptance of the testimony of the victim, who knew appellant and identified appellant as one of his assailants, and other prosecution witnesses, who also knew appellant and placed him at the scene at the time of the assault.

            Because we find no plain error affecting substantial rights, we affirm.