This opinion will be unpublished and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

C6-02-349

 

State of Minnesota,

Respondent,

 

vs.

 

Leonard Quavinice Young,

Appellant.

 

Filed February 18, 2003

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 00111269

 

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

 

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

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Special Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a second-degree felony-murder conviction, appellant Leonard Quavinice Young argues that (1) the state failed to prove that he did not act in self-defense and (2) the district court erred by denying his request for consideration of first-degree manslaughter and by not granting a mistrial and barring a retrial.  We affirm.

            FACTS

            Around 11 p.m. on November 20, 2000, Young and his girlfriend, Rogina Sullivan, went to James Banks’s home after Sullivan told Young that Banks attempted to rape her earlier in the evening, and she wanted to confront Banks.  Outside the door of Banks’s building, there was a three-and-a-half-foot-wide cement landing.  Two steps led up to the landing.  Sullivan knocked on the door and waited on the landing for Banks to come to the door.  Young stood at the bottom of the steps.

            Banks came to the door holding a knife and gesturing with his hands.  He was also swearing and shouting racial epithets at Sullivan and Young.  When he came out the door, Banks did not have the knife and had calmed down.  Young testified that Banks suddenly lunged toward him and that he grabbed a shovel that was in the snow to his right and hit Banks once to keep him off Sullivan and himself.

            Banks fell back and hit his head on the cement landing, which fractured his skull.  He later died as a result of his head injury.

            Young was initially charged with first-degree assault, but after Banks died, the complaint was withdrawn, and Young was charged with second-degree felony murder.  A jury trial ended in a mistrial.  Following a bench trial, Young was convicted and sentenced to 171 months in prison.

D E C I S I O N

1.         Young asserted a self-defense claim, and he argues that the evidence was insufficient to prove that his actions were not justified by self-defense.  Where a claim of insufficiency of the evidence is made, the reviewing court’s function is limited to

ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.

 

State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (citation omitted).  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) (citation omitted).  “A trial judge’s determination is given the same weight as a jury verdict.”  City of Grand Rapids v. Jarvi, 410 N.W.2d 83, 84 (Minn. App. 1987) (citation omitted).

            When self-defense is raised, the state must prove beyond a reasonable doubt that the defendant did not act in self-defense.  State v. Spaulding, 296 N.W.2d 870, 875 (Minn. 1980).  To do so, the state must disprove at least one of the elements of self-defense.  Id.

A defendant claiming self-defense may use a level of force that is reasonable and only when there is no reasonable alternative to the use of force.

 

State v. Glowacki, 630 N.W.2d 392, 403 (Minn. 2001) (citation omitted).  “[A]n individual may only use reasonable force based upon the circumstances of the situation.”  Id. at 402-03 (citation omitted).  “[A] reasonableness determination is properly made by the finder of fact.”  Id. at 403.

            Under Minn. Stat. § 609.06, subd. 1(3) (2002),

reasonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist:

 

(3) when used by any person in resisting or aiding another to resist an offense against the person.

 

            But reasonable force includes deadly force only in limited circumstances.  Minn. Stat. § 609.065 (2002) provides:

The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.

 

            The district court found that, “There is no evidence that defendant believed his action was necessary to avert death or great bodily harm.”  Young contends that this finding demonstrates that the district court applied the wrong self-defense standard because a belief that his action was necessary to avert death or great bodily harm only applies when a defendant employs deadly force, and he did not employ deadly force.  Young argues that the medical examiner’s testimony that the injury actually caused by the shovel was minor demonstrates that the force he used was not deadly force, and although Banks died, the death occurred only because he hit his head on the concrete landing, which was an unintended consequence and did not elevate his actions to the use of deadly force.

            Although this argument correctly explains the standard that is to be applied when evaluating a self-defense claim, we disagree that the finding demonstrates that the district court applied the wrong standard.  The district court’s conclusion of law states:

            The State has proven, beyond a reasonable doubt, that the defendant was not acting in self defense at the time that he struck James Banks in that no offense was being committed against the defendant or Rogina Sullivan by James Banks; that the force used by the defendant was unreasonable and excessive, and that the defendant did not act in good faith in that he failed to retreat or avoid the danger, perceived or otherwise.

 

            The district court’s conclusion that Young did not act in self-defense is not based on a determination that Young did not have a reason for using deadly force; it is based on a determination that Banks was not committing an offense against Sullivan or Young when Young used force against Banks.  Because Banks was not committing an offense, Young had no basis to use force even if the force was not deadly force.

            Young argues that the record does not support the district court’s determination that Banks was not committing an offense because Young testified that Banks lunged toward him and Sullivan from the doorway, and the state did not present evidence to refute this point.  But the state presented the testimony of Banks’s landlord that the shovel that Young hit Banks with was routinely kept to the left of the door of Banks’s building, leaning against the wall, and he had never seen it to the right of the door.  The district court found:

[Young] testified that Mr. Banks suddenly lunged at him; that he grabbed a shovel located to [Young’s] right in the snow outside the door, and that he hit Mr. Banks once with the shovel in an effort to “keep him up off of” Ms. Sullivan and himself.  However, the shovel was approximately 3 to 4 feet away from [Young’s] position at the bottom of the steps, since it was routinely kept leaning against the building outside the door.

 

            This finding indicates that the district court found that Young’s testimony that Banks lunged at him was not credible.

Where, as here, credibility determinations are crucial, a reviewing court will give deference to the primary observations and trustworthiness assessments made by the district court.

 

State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997) (citation omitted), review denied (Minn. Jun. 11, 1997).

            Because we must defer to the district court’s credibility determination, we conclude that the state met its burden of proving beyond a reasonable doubt the non-existence of at least one element of self-defense; Banks was not committing an offense against Young or Sullivan when Young used force against Banks.  Because the state only needed to disprove one element, we will not address the state’s additional arguments that it disproved the remaining elements of self-defense.

2.         The district court concluded that Young committed second-degree murder because he committed the felony offense of first-degree assault, and the assault caused Banks’s death.  Young argues that the district court erred in concluding that the underlying offense he committed was assault in the first degree, rather than assault in the fifth degree.  Young contends that because causing a death by committing a fifth-degree assault is first-degree manslaughter, rather than second-degree murder, the district court should have considered whether he committed first-degree manslaughter.  We disagree.

            Under Minn. Stat. § 609.19, subd. 2(1) (2002), a person is guilty of unintentional murder in the second degree if the person

causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting.

 

            Under Minn. Stat. § 609.20 (2002),

 

            [w]hoever does any of the following is guilty of manslaughter in the first degree * * * ;

 

(2) violates section 609.224 and causes the death of another or causes the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death of or great bodily harm to any person was reasonably foreseeable, and murder in the first or second degree was not committed thereby[.]

 

            Minn. Stat. § 609.224 (2002), which defines fifth-degree assault, provides:

 

            Whoever does any of the following commits an assault and is guilty of a misdemeanor:

            (1) commits an act with intent to cause fear in another of immediate bodily harm or death; or

            (2) intentionally inflicts or attempts to inflict bodily harm upon another.

 

            “‘Bodily harm’ means physical pain or injury, illness, or any impairment of physical condition.”  Minn. Stat. § 609.02, subd. 7 (2002).

            “Whoever assaults another and inflicts great bodily harm” commits first-degree assault.  Minn. Stat. § 609.221 (2002).

“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. 7a (2002).

            Young argues that hitting Banks with a shovel was a violation of Minn. Stat. § 609.224, rather than a first-degree assault, because the shovel caused bodily harm, but it did not cause great bodily harm.  Young contends that the district court erred in concluding that he committed the felony offense of first-degree assault because in determining whether Banks suffered great bodily harm, the court considered the injury Banks sustained when he hit his head on the concrete, rather than the injury Banks sustained from the shovel itself.  Young claims that the injury caused by the shovel itself was minor and only required two sutures.

            But Young cites no authority for his contention that in determining whether Young inflicted great bodily harm, the district court should not have considered the injury Banks sustained when his head hit the concrete.  To prove Young guilty of first-degree assault, the state needed to prove that Young’s acts were a substantial causal factor in causing Banks’s injuries.  See State v. Olson, 435 N.W.2d 530, 534 (Minn. 1989) (stating that to prove defendant guilty of second-degree murder and first-degree manslaughter, state must prove defendant’s acts were “substantial causal factor” in causing death).  To be a superseding cause, intervening conduct must be the sole cause of the end result.  Id.

The evidence presented at trial provides no basis to conclude that Young’s hitting Banks in the head with a shovel was not a substantial causal factor in causing the injury Banks sustained when he hit his head on the cement.  Young hit Banks in the head with a shovel, and almost immediately, Banks fell and hit his head.  There was no intervening conduct that could be a superseding cause of Banks’s injury.   Consequently, there was no basis for the district court to conclude that Young did not inflict great bodily harm, and therefore, the district court did not err when it declined to determine whether Young committed first-degree manslaughter.

3.         During Young’s first trial, the prosecutor asked a witness a question that the court had told the prosecutor not to ask.  Young’s attorney moved for a mistrial and argued that the state should be barred from retrying the case.  The court stated that it would order a mistrial but that it would not bar a retrial.  After taking a break to discuss the matter with Young, Young’s attorney withdrew the motion for a mistrial.[1]  Young argues on appeal that it was plain error for the district court not to grant the motion for a mistrial and bar a retrial because the prosecutor’s conduct clearly was willful, intentional, and intended to goad Young into moving for a mistrial.

The United States Supreme Court has established a three-prong test for plain error, requiring that before an appellate court reviews an unobjected-to-error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.  If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.

 

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citations omitted).

 

[I]f a trial is terminated at the defendant’s request, the double jeopardy clause does not bar a second trial unless the mistrial resulted from governmental misconduct intended to provoke the mistrial request.

 

State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985) (citation omitted).  We review the district court’s finding that the prosecutor did not willfully or intentionally elicit any inadmissible evidence to determine whether it is clearly erroneous.  Id.

            Young argues that the record demonstrates that the prosecutor’s conduct was willful, intentional, and intended to goad his attorney into moving for a mistrial.  But Young’s argument essentially asks us to review the evidence and reach a factual conclusion different from that reached by the district court; it does not explain why the district court’s finding was clearly erroneous.  Because Young has not shown that the district court’s factual determination was clearly erroneous, he has not demonstrated that the district court erred when it declined to bar a retrial, and therefore, he has not demonstrated that there was plain error.

            Affirmed.

 

 



[1] The district court later declared a mistrial because of juror misconduct.