This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Brett Allyn Boyd,
Olmsted County District Court
File No. K2011607
Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Mike Hatch, Attorney General, Stephanie Morgan, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.
On appeal from convictions for second-degree assault (aiding and abetting) and terroristic threats, appellant Brett Boyd argues that (1) the evidence was insufficient to support his convictions; (2) the district court committed plain error in failing to give proper jury instructions on the definition of a “dangerous weapon” and a “crime of violence,” and in failing to instruct the jury on the appellant’s entitlement to a unanimous verdict; and (3) the district court abused its discretion by declining to depart from the presumptive sentence based on appellant’s unamenability to probation. We affirm.
On May 3, 2001, appellant Brett Boyd attended a barbecue at John Balderston’s home. Among the guests were Nicholas Hodge, Matt Magruder, and a few friends of Balderston’s girlfriend, Natalie Helget. After the party, Hodge, Magruder, Balderston, and an “older gentleman” went to Boyd’s home. They talked and drank beer in the living room. Hodge, Boyd, and the older gentleman had knives. According to Balderston, all three were “playing with them, holding them in their hand, [and] having them on their laps” throughout the evening.
During the gathering at Boyd’s home, Hodge hit Balderston numerous times on the head and stated that he should cut Balderston up. While Hodge was attacking Balderston, Boyd sat on the couch and told Hodge to “hit him again.” Then, while still holding his knife, Boyd, together with Hodge, took Balderston to the bathroom. Either Hodge or Boyd told Balderston, “[w]e’re gonna see what we’re gonna do with you.” Boyd shut the bathroom door behind Balderston and turned off the lights. Balderston overheard Boyd and Hodge outside the bathroom saying that “they should just [go] in there and stab [Balderston] up a couple times.” After Boyd stated, “We’re gonna figure out what we should do with you,” Hodge said “I’m gonna go in there and jab him a couple times.” From these statements, Balderston understood that Hodge intended to stab him. When Balderston tried to leave the bathroom, Boyd slammed the door and told him to stay in there. At this point, Boyd received a call from Balderston’s girlfriend, Helget. She talked to Hodge and Boyd. Boyd told Helget that Balderston was in the bathroom on a “time-out,” but they were going to bring him home.
When Boyd opened the door to the bathroom, he saw Balderston “sitting there in the corner scared to death.” Boyd told him to come out. Outside the bathroom, Balderston saw Boyd, Hodge, and the older gentleman with their knives out. After Balderston came out, Boyd grabbed a necklace off Balderston’s neck, saying “It’s mine now.” Boyd and the older gentleman then took Balderston out to Boyd’s car.
In the car, Balderston was sitting behind Boyd, who was driving. The older gentleman was in the front seat with his hand behind Boyd’s headrest in front of Balderston. The older gentleman was holding a knife pointed at Balderston. Balderston felt fearful. When the car was about six houses away from Balderston’s, Balderston jumped from the car. He rolled and ran down a hill. From a nearby trailer park, Balderston called the police.
After Balderston jumped out of the car, Boyd went to Balderston’s home, where he saw Hodge, Magruder, and Helget. Boyd told Helget that Balderston jumped out of the car. Helget noticed that Boyd was wearing Balderston’s necklace. Upon Helget’s inquiry, Boyd explained that Balderston borrowed money from Boyd and provided the necklace as collateral. Hodge and Magruder went outside to wait for Balderston while Boyd stayed inside the house. At this point, police arrived and arrested Boyd and Hodge. After police apprehended Hodge, they found two knives in his pockets.
Boyd was charged with terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2000), false imprisonment, in violation of Minn. Stat. § 609.255, subd. 2 (2000), and second-degree assault (aiding and abetting), in violation of Minn. Stat. § 609.222, subd. 1 (2000). Shortly after his arrest, Boyd called Helget twice from jail to discuss Balderston and the charges. Helget concluded that Boyd was asking her “to cover something up for him.” Helget later found a knife on the floor in her bathroom that belonged to Boyd. At trial, Boyd denied that the knife belonged to him or Hodge. He also denied hurting Balderston, helping Hodge to scare Balderston, or having a knife that evening. Hodge, who reached a plea agreement with the state, pleaded guilty to terroristic threats, admitted that he assaulted Balderston, and testified at trial that Boyd may have had a knife out that night.
On August 8, 2001, the jury found Boyd guilty of second-degree assault (aiding and abetting), terroristic threats, and false imprisonment. Boyd was sentenced to serve 58 months in prison for the second-degree assault.
Boyd challenges the sufficiency of the evidence to support his convictions for second-degree assault (aiding and abetting) and terroristic threats. Our review of the jury’s verdict is limited to a painstaking analysis of the record to determine whether the evidence, viewed in the light most favorable to the verdict, supports the verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). In so doing, we assume that 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). We 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 that the defendant was guilty of the charged offenses. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
A. Second-degree assault
Boyd first argues that the evidence was insufficient to support his conviction of second-degree assault, because the state failed to prove beyond a reasonable doubt that he assaulted Balderston with a dangerous weapon. Second-degree assault is defined as assault with a dangerous weapon. Minn. Stat. § 609.222, subd. 1 (2000). “Assault” is defined in part as “[a]n act done with intent to cause fear in another of immediate bodily harm or death.” Minn. Stat. § 609.02, subd. 10(1) (2000). A dangerous weapon is defined as
any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm * * * or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm * * * .
Minn. Stat. § 609.02, subd. 6 (2000). Boyd argues that the state failed to prove that the knife he allegedly possessed was designed as a weapon or that he used it in a manner “calculated or likely to produce death or great bodily harm.”
Because the statutory definition of a “dangerous weapon” includes a device that is dangerous “in the manner it is used or intended to be used” and because Boyd is charged with aiding and abetting another person’s use of a knife to threaten bodily harm, we need not analyze whether the knife allegedly used by Boyd was designed as a dangerous weapon. See State v. Patton, 414 N.W.2d 572, 574 (Minn. App. 1987) (declining to analyze whether buck knife was designed as dangerous weapon where defendant allegedly used it in threatening manner); see also State v. Davis, 540 N.W.2d 88, 90 (Minn. App. 1995) (dangerousness of instrumentality depends on circumstances of assault). To be convicted of second-degree assault under the state’s theory of the case, Boyd must have used or aided another in using a knife in a manner “calculated or likely to produce death or great bodily harm or fear thereof.” Id. at 91 (setting standard for second-degree assault conviction). When viewed in the light most favorable to the verdict, and accepting Balderston’s version of events, the evidence is sufficient to prove beyond a reasonable doubt that Boyd is guilty of second-degree assault as an aider or abettor. See State v. Lucas, 372 N.W.2d 731, 740-41 (Minn. 1985) (discussing accomplice liability); see also State v. DeFoe, 280 N.W.2d 38, 40 (Minn. 1979) (affirming conviction based on accomplice theory even though Minn. Stat. § 609.05 not specifically cited in charges).
To impose liability under the aiding and abetting statute, the state must show “some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”
State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (quoting State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988)). “[P]resence, companionship, and conduct before and after the offense are circumstances from which a person’s participation in the criminal intent may be inferred.” State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981). An accomplice is guilty of the substantive crime if the crime is actually committed. Lucas, 372 N.W.2d at 738-39. Thus, it was the state’s burden to prove that (1) the second-degree assault against Balderston had been committed, (2) Boyd was present during the assault, and (3) he had a “knowing role” in its commission.
The evidence establishes that on the evening of May 3 and into the early hours of May 4, Hodge, Boyd, and an unidentified older gentleman acted in concert to assault Balderston with their fists and brandished knives while threatening to stab Balderston to teach him a lesson. Hodge and Boyd locked Balderston in a bathroom, transported him in a car at knifepoint, and caused him to be so fearful of harm or death that he jumped out of a moving vehicle to escape and call the police. Boyd was not only present during the crime, but he encouraged Hodge to hit Balderston, transported Balderston while the older gentleman held the knife on Balderston, and did nothing to thwart the completion of the crime. Accordingly, the record supports Boyd’s conviction for aiding and abetting second-degree assault based on the accomplice theory.
threaten[ing], directly or indirectly, to commit any crime of violence with [the] purpose to terrorize another * * * or in a reckless disregard of the risk of causing such terror or inconvenience * * * .
Minn. Stat. § 609.713, subd. 1.
Whether a statement constitutes a threat depends on the circumstances in which it is made. See State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975). The Minnesota Supreme Court has explained that a threat under Minn. Stat. § 609.713 means
a declaration of an intention to injure another or his property by some unlawful act. The test of whether words or phrases are harmless or threatening is the context in which they are used. Thus the question of whether a given statement is a threat turns on whether the “communication ‘in its context’ would ‘have a reasonable tendency to create apprehension that its originator will act according to its tenor.’”
Id. (citations omitted) (emphasis added). Thus, the issue here turns on whether the jury could reasonable conclude that Boyd’s statements caused Balderston to believe that Boyd would carry them out.
When viewed in the light most favorable to the verdict, the evidence is sufficient to support the jury’s finding that Boyd uttered terroristic threats against Balderston. When Balderston was being hit by Hodge, Boyd also made statements about “cutting” Balderston and teaching him a lesson. This statement was made in the midst of several people, including Boyd, displaying knives. After being locked up in the bathroom, Balderston heard Boyd and Hodge discuss stabbing and “taking care” of Balderston. The evidence also supports a finding that Boyd possessed the required mental state for terroristic threats. While a threat need not actually cause fear in the victim, the victim’s reaction to the threat can be “circumstantial evidence” relevant to the defendant’s intent. Schweppe, 306 Minn. at 401, 237 N.W.2d at 614. Here, the threats uttered by Boyd caused Balderston to be fearful enough to jump from the moving car and call the police. On this record, the evidence supports Boyd’s conviction of terroristic threats, in violation of Min. Stat. § 609.713, subd. 1.
Boyd next challenges the jury instructions given by the district court. Because Boyd did not challenge the instructions at trial, our review is limited to analyzing whether the district court committed plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Accordingly, we must determine whether (1) there was an error; (2) the error was plain; and (3) the error affected substantive rights of the accused. Id.
A. Dangerous weapon
Boyd first argues that the district court gave an erroneous instruction on the definition of a “dangerous weapon” by failing to inform the jury that the knife had to be used in a manner calculated to produce death or great bodily harm. The district court gave the following dangerous-weapon instruction:
A dangerous weapon is defined to include 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.
The instruction mirrors the definition set forth in 10 Minnesota Practice, CRIMJIG 13.10 (1999). While the CRIMJIG language is not identical to the statutory definition of a “dangerous weapon” found in Minn. Stat. § 609.02, subd. 6, the Minnesota Supreme Court approved this definition in State v. Gebremariam, 590 N.W.2d 781, 783-84 (Minn. 1999). Accordingly, the district court’s instruction on the definition of “dangerous weapon” was not erroneous.
Boyd also argues that the district court committed error by failing to define “great bodily harm.” Boyd provides no legal authority requiring an instruction on “great bodily harm” for a second-degree assault charge under Minn. Stat. § 609.222, subd. 1. A definition of “substantial bodily harm” for a second-degree assault charge is required under Minn. Stat. § 609.222, subd. 2 (2000), because inflicting “substantial bodily harm” is an essential element of the offense. Id. (“[w]hoever assaults another with a dangerous weapon and inflicts substantial bodily harm” is guilty of a crime). But here the state was not required to prove any degree of bodily harm.
The instructions to the jury “must define the crime charged and the court should explain the elements of the offense rather than simply read statutes.” State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). Bodily injury is not an element of second-degree assault charged under Minn. Stat. § 609.222, subd. 1 (emphasis added). Davis, 540 N.W. 2d at 91. Jury instructions on second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1, properly include instructions on all essential elements of second-degree assault, as found in 10 Minnesota Practice, CRIMJIG 13.10 (1999), including the legal definition of assault found in 10 Minnesota Practice, CRIMJIG 13.01 (1999). State v. Charles, 634 N.W.2d 425, 431 (Minn. App. 2001). The district court complied with these requirements by instructing the jury on the legal definitions of assault and dangerous weapon. The district court, therefore, did not err in instructing the jury on the second-degree assault charge.
B. Terroristic threats
As to the terroristic-threats charge, the district court instructed the jury as follows:
[t]he elements of making a terroristic threat are, first, that the defendant threatened, directly or indirectly, to commit a crime of violence. You are instructed that assault is a crime of violence.
Boyd argues that this instruction was erroneous, because the term “assault” is overbroad. Only first-, second-, and third-degree assaults are crimes of violence.
The terroristic-threats statute provides that a “crime of violence” has the definition given to the term “violent crime” in Minn. Stat. § 609.1095, subd. 1(d) (2000). Minn. Stat. § 609.713, subd. 1. The definition of “violent crime” specifically includes first-, second-, and third-degree assault. Minn. Stat. § 609.1095, subd. 1(d). Because assault in the fourth and fifth degrees, as well as domestic assault, are not included in the violent-crime definition, the district court committed error by instructing the jury that any assault was a crime of violence. Thus, the first prong of the Griller plain-error test is satisfied.
The second prong requires the error to be plain. Griller, 583 N.W.2d at 740-41. “[I]t is sufficient that the error is plain at the time of the appeal.” Id. at 741. “For purposes of plain error rule, ‘plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’” Ihle, 640 N.W.2d at 917 (quotation omitted). We hold that including any assault in the definition of a “violent crime” was an obvious error, because Minn. Stat. § 609.1095, subd. 1(d), specifically limits that definition to assault in the first, second, or third degrees.
The third prong of the plain-error test requires the error to affect defendant’s substantial rights. Griller, 583 N.W.2d at 741. This prong is satisfied if the error was prejudicial and affected the outcome of the case. Id. A plain error is prejudicial if there exists a “reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.” State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990).
We conclude that there is no reasonable likelihood that a more particularized reference to assault in the instruction would have changed the outcome in this case. The jury found Boyd guilty of second-degree assault. This crime is specifically listed in the definition of “violent crime” in Minn. Stat. § 609.1095, subd. 1(d). The evidence underlying Boyd’s conviction for terroristic threats was based on his statements about “cutting” Balderston in the context of the display of knives by Boyd and the others. Thus, the evidence before the jury supports a finding that Boyd threatened to assault Balderston with a dangerous weapon, which is second-degree assault, a “crime of violence” as defined under the statute.
C. Unanimous verdict
Boyd asserts that the district court erred by failing to instruct the jury on his entitlement to a unanimous verdict. He contends that, because the state presented two different factual scenarios as alternatives for proving second-degree assault, the district court should have instructed the jury to evaluate each scenario separately and reach a unanimous verdict.
Id. (citation omitted). But the “jury must unanimously agree on which acts the defendant committed if each act itself constitutes an element of the crime.” State v. Stempf, 627 N.W. 2d 352, 355 (Minn. App. 2001) (citing Richardson v. United States, 526 U.S. 813, 824, 119 S. Ct. 1707, 1713 (1999)). In Richardson, the United States Supreme Court held that the jury was required to agree unanimously on which three acts of a series of drug violations constituted the requisite violations under the criminal-enterprise statute. Richardson, 526 U.S. at 824, 119 S. Ct. at 1713. Similarly, in Stempf, werequired the jury to agree unanimously on which act—the possession of drugs in the truck or the possession of drugs in the home—constituted the criminal act, because the act of possession was an element of the charged offense. Stempf and Richardson are distinguishable from the instant case.
The state did not allege alternative methods of committing second-degree assault. Rather, it maintained at trial that Boyd’s continuous course of conduct that evening constituted Boyd aiding and abetting others to assault Balderston with a dangerous knife and cause Balderston to be so fearful of immediate bodily harm or death that he ultimately jumped from a moving car. Rather than distinctive criminal acts by Boyd, the state alleged a continuity of the same behavior towards Balderston. The criminal conduct occurred in the span of approximately an hour and included the same people. Unlike the defendant in Stempf, who possessed the drugs on two distinct occasions, Boyd acted in an uninterrupted, assaultive manner toward Balderston. Accordingly, the district court did not err by failing to instruct the jury to evaluate distinct scenarios and render a unanimous verdict.
Finally, Boyd argues that the district court abused its discretion by declining to depart from the presumptive sentence based on Boyd’s unamenability to probation. The district court may grant a downward durational departure from the presumptive sentence when there are “substantial and compelling circumstances” that mitigate the defendant’s culpability. State v. Kujak, 639 N.W.2d 878, 881 (Minn. App. 2002). The mere fact that a mitigating factor is present, however, does not require the district court to impose a shorter sentence. State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984). Boyd filed a motion for downward departure, arguing that he played a minor role in the offense and that he was amenable to probation.
During the sentencing, the district court considered a number of factors in determining whether a downward departure was appropriate in this case. After considering Boyd’s arguments, the district court rejected Boyd’s claim of amenability to probation. Although it declined to depart downward, the district court considered the nature of Boyd’s participation in the offense and imposed a sentence at the lower end of the applicable guideline range. The district court’s sentencing determination is well founded. In the absence of substantial and compelling circumstances that mitigate Boyd’s guilt, we find no merit in Boyd’s argument for reversal.
 The record is silent as to this person’s identity.
 Boyd relies on the holding in In re Welfare of P.W.F., 625 N.W.2d 152, 154-55 (Minn. App. 2001), where we reversed a conviction for possession of a dangerous weapon on school property, in violation of Minn. Stat. § 609.66, subd. 1d(a) (1998), based on the student’s possession of a folding knife. In P.W.F., we explained that, because there was no claim that the student used or intended to use the knife to produce death or great bodily harm, his knife could be a dangerous weapon only if it were designed as a weapon and capable of producing death or great bodily harm. But Boyd was not charged simply with possession. Here, the offense is an assault which requires proof of an act showing Boyd’s intent to use a weapon to inflict bodily harm or to cause fear of harm or death.