This opinion will be unpublished and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,
Phillip John Schmelzer,
Filed April 15, 2003
Affirmed as modified
Dakota County District Court
File No. K5012401
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Chief Deputy, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
Barrie S. Schumack, 2605 East Cliff Road, Burnsville, MN 55337 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.
G. BARRY ANDERSON, Judge
Appellant, convicted of second-degree assault, argues that the district court abused its discretion by: (1) refusing to admit bad-acts evidence; (2) failing to instruct the jury to presume he was acting in self-defense; and (3) imposing a double-upward-durational-sentencing departure. Because the probative value of the bad-acts evidence does not outweigh its potential for unfair prejudice, the jury instructions were proper, and the district court did not abuse its discretion in sentencing, we affirm as modified.
Early in the evening of August 10, 2001, appellant Phillip Schmelzer and his friend James Avery borrowed the car of appellant’s girlfriend and dropped her off at work in Apple Valley and then drove to a nearby friend’s house. While visiting with the friend, appellant drank two 40-ounce bottles of malt liquor. From their friend’s house, Avery drove appellant to the Dakota County Fair. After leaving the fair, appellant drove himself, Avery, and two friends they met at the fair, back to Apple Valley.
Meanwhile, Osa Romanson, the victim, and Timothy Prax were returning to Apple Valley after an evening of socializing in Minneapolis during which each had a couple of drinks. The vehicles driven by Romanson and appellant pulled up next to each other at a stop light on Cedar Avenue during the early morning hours of August 11, 2001. What happened next was disputed at trial. Because of the severity of his injuries, Romanson has no memory of the incident and was unable to testify.
The passengers in appellant’s car testified that for no apparent reason, Romanson and Prax began making hand gestures indicating they wanted to fight. In his videotaped statement to the police, appellant said that Romanson complained that appellant had swerved toward Romanson’s SUV. Prax testified that he heard someone yell “f---ing ch-nk.”
When the light changed, appellant sped off and Romanson chased after him telling Prax “let’s get these f---ers.” Prax testified that he could see the occupants of appellant’s car making faces and mocking Romanson and Prax’s Asian appearance, and that Avery indicated he wanted to fight. Appellant yelled, “I’m an American” during the chase and admitted that it was “very likely” someone else in his car made racial comments.
Prax testified to throwing beer cans that hit appellant’s car. Avery testified that the occupants in Romanson’s car made hand gestures indicating they wanted to fight. Appellant told the police he tried to stay away from Romanson’s vehicle and avoid further conflict by both speeding up and slowing down. During the chase, he retrieved a hunting knife with a five and a half inch blade that was concealed in a CD case.
When appellant stopped at a red light in a left-turn lane, Romanson and Prax left their SUV and ran to the front passenger side door of appellant’s vehicle where Avery was sitting. Romanson and Prax began hitting Avery. Avery grabbed a crowbar and tried to fend off the attack. Appellant attempted to stab Romanson and Prax with his hunting knife, seeking to stop the assault. Avery was eventually pulled out of the car through the open window.
Romanson went around the back of appellant’s car and confronted appellant just as he was getting out of the car. In his taped statement to the police, appellant contends that Romanson threatened him, and as a result, appellant held up his weapon and said, “I have a knife.” Romanson then punched appellant in the face. Intending to hit Romanson’s arm, appellant swung his knife at Romanson and felt it hit him. Appellant told the police that Romanson continued to advance toward him so he swung the knife again and hit Romanson in the neck. After seeing a tremendous amount of blood spurt from Romanson’s neck and fearing that he had killed Romanson, appellant ran off. Appellant ran through a residential neighborhood until he found a storage shed where he hid until the police stopped searching for him.
Just before the stabbing, while Romanson was walking around the car to confront appellant, Lakeville Police Officer Rick Bussler arrived at what he thought was a traffic-accident scene. Shortly after Bussler identified himself as a police officer he observed appellant flee. Bussler then noticed an immense quantity of blood gushing from Romanson’s neck and immediately applied first aid while waiting for an ambulance to arrive. Although Bussler’s quick actions probably saved Romanson’s life, Romanson suffered permanent brain damage, needs help to care for himself, has lost the use of his right arm and hand, and has great difficulty walking and speaking.
Appellant turned himself into the police later that day and gave a recorded statement. He was subsequently charged with one count of assault in the first degree, in violation of Minn. Stat. § 609.221, subd. 1 (2000) (inflicting great bodily harm) and one count of assault in the second degree, in violation of Minn. Stat. § 609.222, subd. 1 (2000) (assaulting another with a dangerous weapon).
At trial, to bolster his claim that Romanson and Prax provoked the assault and he acted in self-defense, appellant sought to admit evidence stemming from a 1999 dispute involving Prax. In that incident, appellant alleged that Prax tried to justify his violent and assaultive actions by falsely accusing others of making racial slurs.
Appellant sought to introduce the police reports from the 1999 incident, as well as testimony from two witnesses who would state that Prax assaulted or threatened them without provocation. One witness, Timothy Weinrich, was prepared to testify that while he was paying his bill in a restaurant, Prax approached him and “out of the blue” threatened him, telling Weinrich “he needed to have his a- - kicked.” The other witness, Eric Krenzell, would testify that although he did not witness the incident with Weinrich in the restaurant, he was waiting outside the diner in his car when Prax approached and, for no apparent reason, kicked out a window in Krenzell’s vehicle. Following his arrest, when asked by the police why he had kicked out the window, Prax replied, “I hate white people, you all are racist.” Prax told the police that while dining with friends the night of the Spreigl incident he heard some young men at a nearby table speaking in fake Chinese accents and making derogatory comments about Asian culture. Because the district court found this bad-acts evidence to be more prejudicial than probative, the district court excluded it from trial.
During deliberations, the jury asked the court whether it had to presume appellant acted in self-defense. Over appellant’s objection, the district court told the jury it did not. The district court also admonished the jury that the state must prove beyond a reasonable doubt that appellant did not act in self-defense. The jury acquitted appellant of the first-degree assault charge, but found him guilty of assault in the second degree.
Citing the fact that appellant seized the knife during the car chase and took it into a fist fight, and that Romanson had been stabbed three times, leaving him severely injured and permanently disabled, the district court found Romanson had been treated with particular cruelty and imposed a double-upward-durational-departure sentence of 78 months. During the same sentencing hearing, the district court sentenced appellant on two unrelated probation-violation matters and ordered that the 78-month assault sentence be served consecutively to the probation-violation sentences. This appeal followed.
Appellant at trial sought to admit evidence of prior bad acts on the part of Prax, consisting of an assault followed by false accusations that racial slurs provoked him. The key question we face on appeal is whether it was error for the court to refuse to admit this Spreigl evidence.
The district court has broad discretion in making evidentiary rulings. State v. Nunn, 561 N.W.2d 902, 906-07 (Minn. 1997). A reviewing court will not reverse a district court’s decision concerning the admission of evidence of prior bad acts unless an abuse of discretion is clearly shown. State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).
Under Minnesota Rule of Evidence 404(b), evidence of another crime, wrong, or act, known as “Spreigl evidence,” that concerns the defendant’s conduct, is not admissible at trial to prove the character of a person in order to show action in conformity therewith. Minn. R. Evid. 404(b). But evidence of another crime, wrong, or act may be admissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.
Rule 404(b) also allows a defendant to introduce evidence of other crimes or misconduct of a third person to prove that the third person, rather than the defendant, committed the crime charged. But a defendant’s use of Spreigl evidence is not limited to demonstrating that another party committed the crime in question. State v. Flores, 595 N.W.2d 860, 868 (Minn. 1999). Evidence of prior bad acts of a prosecution witness can be used “to generate reasonable doubt of the guilt of the defendant.” State v. Hawkins, 260 N.W.2d 150, 158-59 (Minn. 1977). Bad-acts evidence can also be used to address the credibility of a witness. See State v. Harris, 560 N.W.2d 672, 677-78 (Minn. 1997) (affirming a district court’s decision to allow into evidence facts regarding a defendant’s repeated abuse of his girlfriend in order to explain why she perjured herself at the defendant’s first murder trial and then gave contradictory testimony that implicated the defendant in the murder at a second trial).
Before Spreigl evidence may be admitted, a defendant must demonstrate: (1) by clear and convincing evidence that the third party participated in the Spreigl incident; (2) that the Spreigl incident is relevant and material to the defendant’s case; and (3) that the probative value of the Spreigl evidence outweighs its potential for unfair prejudice. Pierson v. State, 637 N.W.2d 571, 580 (Minn. 2002). All three prongs of this test must be met in order for the evidence to be introduced. State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000).
The district court held that because appellant did not know of Prax’s prior bad acts, the bad-acts evidence could not be used to show appellant had reason to be wary of Prax. Further, because there was ample evidence of Prax’s aggressive conduct to allow appellant to assert Prax’s culpability, and the state conceded that appellant was entitled to a self-defense instruction, the district court found the prior bad-acts evidence more prejudicial than probative. We agree with the district court’s conclusion that the potential for unfair prejudice outweighs the probative value of the evidence.
The district court has broad discretion in determining whether the probative value of Spreigl evidence outweighs the danger of unfair prejudice. State v. Shamp, 422 N.W.2d 520, 526 (Minn. App. 1988), review denied (Minn. June 10, 1988). The unfair prejudice produced by the Spreigl “evidence is not ‘the damage to opponent’s case that results from the legitimate probative force of the evidence; rather it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.’” Robinson, 604 N.W.2d at 364 (quotation omitted). When balancing the probative value of Spreigl evidence against the potential for unfair prejudice, the district court must consider the importance of the Spreigl evidence to the party’s case. State v. Landin, 472 N.W.2d 854, 860 (Minn. 1991).
Here, appellant correctly points out that at trial, although the state conceded that Romanson and Prax instigated this event, the state also repeatedly argued that they were provoked by appellant’s and Avery’s racial slurs. The alleged ethnic insults played an important role in the state’s case. Appellant argues that evidence that Prax has a history of justifying his unprovoked conduct by falsely accusing others of making racist epithets would bolster his claim of self-defense.
But here there is evidence of racial tension between the parties. Appellant as well as his companions admitted that appellant yelled, “I’m an American” at Romanson and Prax. Further, in his statement to the police, appellant admitted it was “very likely” that racial comments were made. This evidence of racial tension weakens appellant’s contention that Prax’s claim that he was motivated by racial slurs by appellant or others was a complete fabrication.
Additionally, the facts of this case tend to negate the probative value of the bad-acts evidence. Here, the jury was presented with evidence that words were exchanged at a stoplight, and that Romanson and Prax chased appellant’s car and threw beer cans at the car. Once appellant stopped at a red light, Prax and Romanson ran out of their vehicle, began attacking Avery and pulled him out of the open window. Whether or not Prax made up the racial slurs hardly makes the situation appellant faced that night significantly more frightening. Nor does it shed light on whether appellant was justified in using a hunting knife to fend off an unarmed combatant. See State v. Pendleton, 567 N.W.2d 265, 269 (Minn. 1997) (holding that the defense of self-defense requires that the defendant perceive a threat and use force the defendant reasonably believes needed to be used to avoid the threat).
Finally, because we conclude that the potential for unfair prejudice of appellant’s Spreigl evidence outweighed its probative value we do not address the other elements of the test. State v. Kates, 616 N.W.2d 296, 300 (Minn. App. 2000), review denied (Minn. Oct. 26, 2000).
Appellant also argues that the district court abused its discretion when it informed the jury it did not have to presume that appellant acted in self-defense when self-defense was the only defense presented. District courts are allowed “considerable latitude” in the selection of language for the jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)). The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). “An instruction is in error if it materially misstates the law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citation omitted).
The focus here is whether the district court’s refusal to instruct the jury to presume appellant acted in self defense resulted in error. Id. at 555. When faced with an erroneous refusal to give jury instructions, the reviewing court must “examine all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict.” State v. Shoop, 441 N.W.2d 475, 480-81 (Minn. 1989) (citation omitted). If the error might have prompted the jury to reach a harsher verdict than it might otherwise have reached, the defendant is entitled to a new trial. Id. at 481.
Appellant argues that, in responding to the jury’s inquiry, the district court committed reversible error by instructing the jury that it was not required to presume appellant acted in self-defense. Appellant notes that once a defendant claims self-defense, the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. Thus, appellant claims, the failure of the district court to instruct the jury to presume he acted in his own defense destroyed the presumption of innocence.
Appellant’s argument misstates the record. It is true that the district court instructed the jury that there was no legal presumption that appellant acted in self-defense. But the district court then instructed the jury once self-defense “is raised * * * the [s]tate has the burden of proving beyond a reasonable doubt that the defendant did not act in self defense.” The state is also correct that appellant provides no legal authority that supports the claim that a presumption of self-defense exists.
Additionally, because in this context the word “presumption” is a legal term, it should not be used when instructing the jury. See generally State v. Olson, 482 N.W.2d 212, 215-16 (Minn. 1992). Here, in responding to the jury’s inquiry, the district court correctly stated the law and the state’s burden of proof. Accordingly, we conclude that the district court did not abuse its discretion when instructing the jury.
Lastly, appellant claims that the district court abused its discretion by imposing a sentence of 78 months, which was a double-upward-durational departure. The district court has the discretion to depart from a presumptive sentence when aggravating circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). This court will not disturb a district court’s sentencing departure absent an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
The district court must provide reasons justifying a departure from the sentencing guidelines. Minn. Sent. Guidelines II.D; Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). In order to impose an upward departure, the district court must determine that the defendant’s conduct was more serious than that typically involved in the commission of that crime. State v. Ford, 539 N.W.2d 214, 229-30 (Minn. 1995).
Here, in light of the fact that appellant took a knife into a fist fight with a much smaller person, stabbed Romanson three times, inflicted a life-threatening injury much more severe than those commonly found in second-degree assaults, and caused permanent disability, the district court found that appellant had acted cruelly and imposed a double-upward departure. Appellant contends that because the jury acquitted him of the assault-one charge, which encompasses serious bodily harm, the district court improperly considered Romanson’s injuries when imposing the sentence. Appellant asserts that in considering the use of the knife and the extent of Romanson’s injuries, the district court improperly considered elements of the crime of which he was acquitted.
Appellant’s arguments misstate the law. There is no requirement that a weapon be used, as appellant suggests, to commit an assault in the first degree. All that is required is the infliction or attempt to inflict great bodily harm upon another. Minn. Stat. §§ 609.02, subd. 10, 609.221, subd. 1 (2000), State v. Mosley, 414 N.W.2d 461, 465 (Minn. App. 1987), review denied (Minn. Dec 22, 1987). Injuries need not be as severe as those Romanson suffered to qualify as great bodily harm. See State v. Currie, 400 N.W.2d 361, 365-66 (Minn. App. 1987) (appellant was properly convicted of assault in the first degree where the evidence showed that the defendant had whipped children with an extension cord that left permanent scars), review denied (Minn. Apr. 17, 1987).
Moreover, the district court was correct in asserting that the injuries here were considerably more serious than those usually found in second-degree assault cases. For a second-degree-assault conviction it is sufficient to merely intend to use a dangerous weapon to threaten another person. Minn. Stat. §§ 609.02, subd. 10, .222 subd. 1, 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. Kastner,429 N.W.2d 274 (Minn. App. 1988) (defendant pointed a knife and screwdriver at the victim), review denied (Minn. Nov. 16, 1988). Even minor injuries may be sufficient to support a second-degree-assault conviction. See Scott v. State, 390 N.W.2d 889, 892 (Minn. App. 1986) (holding that an appellant was properly convicted of second-degree assault even though the victim did not immediately realize he had been stabbed).
Here, appellant not only threatened and injured Romanson with a dangerous weapon, but he also nearly killed him. See State v. Barber, 372 N.W.2d 783, 785 (Minn. App. 1985) (holding that an upward departure is justified where the injury suffered is more serious than required for a conviction), review denied (Minn. Sept. 19, 1985). The district court properly took into account that Romanson suffered a permanent injury. State v. Anderson, 463 N.W.2d 551, 553 (Minn. App. 1990), review denied (Minn. Jan. 14, 1991). The record does not indicate that the district court improperly took into account elements of a more serious crime for which appellant was acquitted.
Appellant also argues that the district court merely paid lip service to the mitigating factors presented in this case, such as the fact that Romanson was the aggressor and to appellant’s amenability to treatment. But the record reflects that the district court did consider these factors. In fact, the record shows that the district court gave considerable thought to the sentence it imposed. Based on the severity of the injuries appellant inflicted and the circumstances of the fight, the district court imposed a sentence within the range of its discretion.
Although we find that the district court did not abuse its discretion by imposing an upward departure, appellant correctly notes that because the assault-two sentence is to be served consecutive to the probation-violation sentences, the district court should have used a criminal history score of zero that would make the mandatory-minimum sentence of 36 months the presumptive sentence. Minn. Sent. Guidelines II.F. We therefore adjust appellant’s sentencing in this matter to 72 months, which is a double-upward departure from the correct presumptive sentence of 36 months.
Affirmed as modified.
 Both Romanson and Prax are Asian Americans.
 The state conceded that Prax threw beer cans at the car appellant was driving and when appellant stopped at a red light, Prax got out of Romanson’s SUV and attacked Avery.
 But appellant’s admission that he may have made a racially inflammatory comment also lessens the relevance and materiality of the evidence.