This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Aleksandr Tofikovich Babaev,
Filed December 31, 2002
Hennepin County District Court
File No. 01036413
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Anderson, Presiding Judge, Toussaint, Chief Judge, and Wright, Judge.
G. BARRY ANDERSON, Judge
Appellant challenges the sufficiency of the evidence supporting his assault conviction. In addition, appellant, by pro se supplemental brief, alleges ineffective assistance of counsel and that the prejudicial effect of news accounts of an unrelated crime prevented the district court and jury from treating him impartially. We affirm.
On April 29, 2001, appellant Aleksandr Tofikovich Babaev was at the Metropole bar and restaurant in Golden Valley, Minnesota. After appellant and a friend, known only as “Andrei,” got into a fight with another customer, the Metropole bartender ordered appellant’s party out of the bar. Oleh Ladan, another bar patron, escorted appellant and Andrei out of the bar to make sure there would be no more trouble.
Outside the Metropole, appellant began arguing with Ladan. While waiting for a ride, Alexei Maslovski noticed Ladan arguing with appellant. Maslovski went over to see if his friend Ladan needed help and exchanged words with appellant. Appellant told Maslovski to “take a hike” and then punched Maslovski in the face. Maslovski fought back, landing several punches, but quit when appellant stopped trying to defend himself.
Maslovski and a friend, Konstantin Ryanjin, then began walking toward Ryanjin’s car. Appellant’s group followed and quickly surrounded them. With Andrei joining in, this time, appellant attacked Maslovski and Ryanjin again. Although Maslovski felt something strike his side he did not realize he had been stabbed until he noticed that both appellant and Andrei were holding knives. When Maslovski and Ryanjin realized that appellant and Andrei had knives, they ran to Ryanjin’s car.
When Sgt. Dennis Smith of the Golden Valley police department arrived, he discovered a scene of mass confusion. After freezing the scene and going from car to car attempting to figure out what happened, Smith discovered Maslovski bleeding in the back seat of Ryanjin’s car. Fearing Maslovski had been stabbed in the spleen or kidney, Smith summoned an ambulance to take Maslovski to the hospital. Initially, Maslovski refused to say how he had been wounded, but he eventually gave a statement to the police.
During Smith’s investigation at the Metropole, an unidentified man told Smith that he had found a knife. The man led Smith to the front entrance of the bar and showed him a black sport jacket. Inside the jacket, Smith found appellant’s passport, billfold and check card. While searching the billfold for identification, Smith discovered a folding knife. The BCA examined the knife but could not find any blood or other evidence linking the knife to the crime.
Appellant was charged with one count of assault in the second degree under Minn. Stat. §§ 609.222, subd. 1 (2000), 609.101, subd 2 (2000), and 609.11 (2000) and one count of giving false information to police under Minn. Stat. § 609.506, subd. 2 (2000). The state amended the complaint, dropping the false information charge. A jury found appellant guilty of the assault charge and appellant now challenges the conviction.
Appellant argues there is insufficient evidence to support the jury’s guilty verdict. We review the evidence in the record “in the light most favorable to the jury’s verdict and assume that the jury believed the state’s witnesses and disbelieved contrary evidence.” Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). A reviewing court “must recognize that the jury is in the best position to evaluate the credibility of witnesses.” State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999) (citation omitted), cert. denied 120 S. Ct. 153 (1999). 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 convicted of second-degree assault. Minnesota statute defines assault as:
(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.
Minn. Stat. § 609.02, subd. 10. An assault must be committed with a dangerous weapon in order to qualify as a second-degree assault. Minn. Stat. § 609.222.
A. Intentional Infliction of or Attempt to Inflict Bodily Harm upon Another.
Appellant first argues that the state failed to prove that he actually stabbed Maslovski. Appellant contends that the state never linked him, or the knife found in his billfold, to the weapon actually used to stab Maslovski. Appellant claims that in order for the jury to find that he assaulted Masovski they would have to believe he stabbed Maslovski, then completely sterilized the knife after the stabbing and then put the knife back in the billfold or believe that he had several knives in his possession. Additionally, appellant asserts that although four witnesses saw him with a knife as he attacked Maslovski, no one, not even Maslovski, saw appellant stab the victim.
Defense counsel very capably raised these arguments at trial, but the jury chose to reject them. More importantly, the state is not required to prove appellant actually stabbed Maslovski. Rather, the statute only requires that the state prove appellant attempted to stab Maslovski. See Minn. Stat. § 609.02, subd. 10. In order to properly convict appellant of second-degree assault the jury only had to find appellant used a dangerous weapon in a manner that is likely to cause a serious injury. State v. Davis, 540 N.W.2d 88, 91 (Minn. App. 1995), review denied (Minn. Jan. 31, 1996).
In Scott v. State, 390 N.W.2d 889 (Minn. App. 1986), this court held that a jury could find a defendant guilty of second-degree assault even if no one witnessed the actual stabbing. In Scott,a fight broke out during a prison-yard football game. Id. at 891. The defendant hit the victim in the chest, apparently stabbing him with a shank in the process, and then chased him across the yard. Id. Seeking safety, the victim ran to a security squad for help. Id. All five members of the squad saw a shank in the defendant’s hand as he chased the victim. Id. When the security squad caught and searched the defendant, however, they could not find the shank on the defendant or anywhere else in the prison yard. Id. The victim never saw the shank, and did not realize he had been stabbed until after the fight was over. Scott, 390 N.W.2d at 891. This court ruled that the fact that the knife was never found did not undermine the conviction. Id. at 892. Scott held that the jury could have determined that a second-degree assault had taken place based on the victim’s discovery that he was bleeding shortly after he was punched, the nature of the wound, the defendant’s threat against the victim as he chased him across the prison yard, and the testimony of the five security guards who saw the knife. Id.
Here, the jury heard from numerous witnesses who testified that appellant had a knife during his fight with the victim. Likewise, the jury received evidence that appellant used the knife in an aggressive, threatening manner. At trial, four prosecution witnesses testified that they saw appellant with a knife in his hand as he tried to hit Maslovski. Although Maslovski did not know that appellant had a knife or realize that he had been stabbed until after he withdrew from the fight, such a delay does not the undermine the conviction. See Id. We conclude that there was sufficient evidence to support the jury’s determination that appellant used a knife in an “attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd. 10 (2000).
B. Intent to Cause Fear in Another of Immediate Bodily Harm or Death
Appellant next argues the state failed to prove that he intended to cause Maslovski fear of bodily injury. Appellant notes that Maslovski did not see the knife until after he had been stabbed. Additionally, appellant points to facts in the record showing that the knives were barely visible and hidden from view during the fight. Appellant supports his argument by citing several cases where defendants, convicted of second-degree assaults, displayed knives, scissors or other sharp objects while explicitly threatening others. State v. Kastner,429 N.W.2d 274 (Minn. App. 1998) (defendant pointed a knife and screw driver at the victim), review denied (Minn. Nov. 16, 1998); State v. Branson, 529 N.W.2d (Minn. App. 1995) (defendant held a knife to the victim’s throat), review denied (Minn. Apr. 18, 1995); State v. Soine, 348 N.W.2d 824 (Minn. App. 1984) (defendant brandished a knife within striking distance), review denied (Minn. Sept. 12, 1984).
In order to prove appellant’s guilt, the state must show that he had the intent to frighten Maslovski. Soine, 348 N.W.2d at 826. The effect of appellant’s actions on the defendant is not determinative. State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998). A defendant’s intent can be inferred from his or her conduct during or surrounding the commission of the crime. Soine, 348 N.W.2d at 826.
For example, in State v. Hough, the Minnesota Supreme Court held that a 15-year-old who fired several shots from an automatic rifle into his principal’s home intended to cause the fear of death or serious bodily injury to anyone inside the house. Hough, 585 N.W.2d at 397. The Hough court ruled that the defendant had assaulted children in the home, even though they were sleeping when the shots were fired and “not immediately aware of the dangerous act.” Id. The court held that the defendant’s intent to cause fear in anyone inside the house, even people asleep when the assault began, could be inferred by the fact finder from the defendant’s reckless and dangerous conduct. Id.
Here, the record shows appellant intended to frighten Maslovski. Appellant was belligerent, combative, and aggressive the night of the incident. He had been involved in a fight just moments before his altercation with Maslovski began. He initiated the fight between himself and Maslovski by striking Maslovski in the face. In addition, he reinitiated the altercation after Maslovski had stopped fighting and attempted to leave the area. Further, several witnesses saw appellant and his companion wielding knives as they attempted to hit Maslovski and Ryanjin. There was sufficient evidence presented to the jury to support a finding that appellant intended to cause fear in Maslovski by holding a knife in his hand and swinging his arms at Maslovski in an attempt to punch or stab him. The fact that Maslovski was unaware of the danger he faced until after he had been stabbed is inconsequential. See Hough 585 N.W.2d at 397. Based on a careful review of the record, we conclude that there was sufficient evidence to support the jury’s conclusion that appellant attempted to cause fear of immediate bodily injury in Maslovski and appellant intended to cause bodily injury to Maslovski.
Because we find there was sufficient evidence to support a conviction under either theory of assault, we need not address, and do not address, appellant’s challenge to the general verdict form used by the district court in connection with the trial.
By pro se brief appellant also argues that he was denied the effective assistance of counsel, that pretrial news reports of a recent Russian immigrant who murdered his entire family had an unfairly prejudicial effect on his trial, and that the judge sentenced him after admitting there was not enough evidence to support his conviction. These claims are without merit. The record contains more than enough evidence to support the guilty verdict. There is no indication that the news account appellant alludes to had any effect on either the judge or jury, let alone prevented the jury from returning an unbiased verdict. See State v. Lewis, 638 N.W.2d 788, 793 (Minn. App. 2002). Finally, the record shows that defense counsel provided appellant with an effective defense.