This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Phillip Knox,




Filed July 8, 2003


Hudson, Judge


Stearns County District Court

File No. K9014373


Mike Hatch, Attorney General, Thomas R. Ragatz, Jennifer Mattson Dick, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103; and


Janelle Kendall, Stearns County Attorney, Stearns County Courthouse, Room 448, 705 Courthouse Square, St. Cloud, Minnesota 56303 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant contests his conviction of second-degree murder, arguing that the state failed to disprove beyond a reasonable doubt appellant’s claim of self-defense.  Because we conclude that the state met its burden, we affirm.


On the afternoon of September 30, 2001, appellant Phillip Michael Knox and his girlfriend Patrice Farinacci went for a Sunday drive.  While on their way home, they saw Doreen Christle and her boyfriend Kevin Olson sitting in front of Christle’s duplex.  Knox and Farinacci stopped by to visit and have a few drinks.  After socializing for a while, the group went to the City Limits bar where they continued to drink alcohol and play a few games of pool.  At about 7:00 p.m. the group left the bar and returned to Christle’s duplex.  Once there, Farinacci went inside to use the restroom.  With the exception of Farinacci, the group continued to drink beer in front of the duplex.

As the group socialized, Tammy Olson (Olson), a tenant in Christle’s duplex, joined the group.  At some point Knox and Olson began to argue.  Olson was heard repeatedly yelling at Knox, “f--- you.”  Olson then went inside the duplex where she lived with her boyfriend Ronald Kaiser (the victim) and apparently told him that Knox had called her a name.  The victim, who was intoxicated, came outside and started to yell at Knox telling Knox that he was going to “kick his ass” for causing trouble.  Knox told the victim that he “hadn’t done anything to him,” and that he “did not want to fight.”  The screaming and hollering continued between Knox and the victim for about another two minutes.  According to Knox, the victim called him a “nigger” several times during this confrontation.  The argument turned physical when the victim, who was taller and bigger than Knox, shoved Knox.  Knox in response shoved the victim back.  The victim retaliated by again shoving Knox.  This time Knox fell to the ground. 

            There is conflicting testimony about what the victim was doing while Knox was on the ground.  Knox testified that the victim stood over him and then came at him.  There was also testimony from at least one onlooker that the victim was just standing there.  It is undisputed that Knox reached in his pocket, pulled out a 3.1-inch blade knife, got up from the ground, and lodged the knife into the victim’s neck.  Knox and Farinacci then left.  On the drive home, Knox told Farinacci that he slashed the victim in self-defense. 

The victim was rushed to the hospital where he underwent surgery, but he subsequently died of his wound.  According to the medical examiner, a forceful blow and compression of the neck resulted in the 3.1-inch knife blade causing a wound to the victim’s neck that was 4.7 inches deep.  Knox initially denied being involved in the altercation, but soon admitted his involvement, telling the police officers he acted in self-defense.  During interrogation at the police station, Knox denied using a knife.  Knox was charged with three counts of second-degree murder.  One count was dismissed prior to trial. 

At trial, Knox asserted his self-defense claim.  He testified that he was “scared to death” when the victim pushed him to the ground.  Knox explained that he reached into his pocket looking for his car keys, but instead discovered the knife.  Knox testified that he got up from the ground, unfolded the knife, and attempted to slash or cut the victim on the forearm.  Knox stated that a previous back injury prevented him from getting up and getting away from the victim.  He also testified that he feared that the victim would run him down. 

            The jury found Knox guilty of second-degree murder while committing or attempting to commit first-degree assault in violation of Minn. § Stat. 609.19, subd. 2(1) (2000), but acquitted Knox of the second-degree intentional murder charge.  This appeal followed. 



Knox argues that his conviction must be reversed because the state failed to prove beyond a reasonable doubt that he did not act in self-defense.  We disagree.

In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).  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 offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

The defendant has the burden of going forward with evidence to support a claim of self-defense.  State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997).  Once a self-defense claim is raised, the state has the burden of disproving at least one of the elements of self-defense beyond a reasonable doubt.  Id.  Even if the elements of self-defense are established, the degree of force used in self-defense must be limited to that which would appear to be necessary to a reasonable person under similar circumstances.  Id.  The elements of self-defense are:

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger.


Id., 572 N.W.2d at 285 (emphasis added).  But when, as here, a defendant asserting self-defense claims that the resulting death was unintentional, a defendant need only have reasonable grounds to believe that “bodily injury,” as opposed to “death or great bodily harm,” was imminent.  See State v. Hare, 575 N.W.2d 828, 833 (Minn. 1998) (holding that CRIMJIG 7.06, which requires a reasonable belief of “bodily injury,” is the appropriate jury instruction when a defendant asserts in a self-defense claim that the resulting death was unintentional). 

The state does not dispute that the victim’s death was unintentional, but argues that it disproved beyond a reasonable doubt all four elements of Knox’s self-defense claim.  First, the state argues that the jury could have concluded beyond a reasonable doubt that Knox acted in an aggressive manner because, although the victim may have provoked the altercation, Knox became the aggressor when he rose from the ground, grabbed his knife, and stabbed the victim in the neck.  At that moment, the state contends, the victim and Knox reversed roles, and Knox became the aggressor.  Knox counters that the victim was the only aggressor and, despite his refusal to fight and his attempts to reason with the victim, the victim continued to provoke him. 

It is undisputed that the victim provoked the altercation.  But during the victim’s provocation, Knox did not stand idly by.  Christle testified that Knox appeared angry and argued with the victim.  The eyewitnesses testified that when shoved, Knox responded in-kind by shoving the victim.  Furthermore, when Knox got up from the ground, he had a knife in his hand.  Viewing the evidence in the light most favorable to the conviction, as this court must, the evidence was sufficient for the jury to conclude that the state proved beyond a reasonable doubt that Knox exhibited aggressive behavior. 

Second, the state contends that it disproved Knox’s claim that he had a reasonable belief that he was in danger of bodily injury and that reasonable grounds existed for Knox’s belief.  The state points to Christle’s testimony that Knox did not appear to be afraid of the victim and the other eyewitness accounts that Knox responded to the victim’s shoving by shoving the victim back.  The state argues that this evidence proves that Knox did not fear the victim, and indeed, by shoving the victim back, Knox actually risked prolonging the altercation.  Knox argues that his belief of imminent bodily injury was reasonable because the victim was taller and bigger than he was.   

At trial, Knox testified that he was scared the victim would not stop at just knocking him down, and that he was frightened because no one present during the altercation came to his assistance.  We agree with Knox that the evidence supports a finding that Knox honestly believed he was in danger of imminent bodily injury and that reasonable grounds existed for his belief.  First, the victim initiated the altercation and Knox was unsure of the basis for the provocation.  Second, the victim was physically larger than Knox and shoved Knox with enough force to knock him to the ground.  Third, Knox did not appear to be among friends ready to come to his assistance.  Our analysis, however, does not end here. 

It is well settled that the degree of force used in self-defense must be limited to that which would appear to be necessary to a reasonable person in similar circumstances.  Basting, 572 N.W.2d at 286.  Knox testified that after the victim shoved him and knocked him to the ground, the victim stood over him, and then came at him while he was on the ground.  But the record does not support Knox’s claim.  None of the eyewitnesses testified that the victim continued to verbally attack Knox or lunge at him once he was on the ground.  Also, the record contains no evidence that the victim had a weapon or made any physical contact with Knox while Knox was on the ground.  The eyewitnesses testified consistently that Knox got up from the ground and immediately stabbed the victim in the neck.  Thus, Knox responded to non-deadly force with deadly force.  From this evidence the jury could reasonably conclude beyond a reasonable doubt that Knox used greater force than that which would appear to be necessary to a reasonable person under similar circumstances. 

Nonetheless, Knox argues that his conduct was reasonable and necessary because he was only trying to cut the victim in an effort to end the fight.  He contends that the jury believed that he only intended to cut the victim because the jury acquitted him of the intentional second-degree murder charge.  The state counters that Knox’s reliance on the jury’s acquittal is inappropriate.  We agree.

A reviewing court need not speculate as to the jury’s reasoning in acquitting a defendant of other charges.  State v. Jones, 266 N.W.2d 706, 710 (Minn. 1978).  The jury has the “power of lenity” and may return a verdict on a lesser charge even if it feels there is evidence to convict on the greater charge.  See id.; see also State v. Juelfs, 281 N.W.2d 148, 150 (Minn. 1979) (stating that the acquittal of one charge and conviction on another charge may simply mean that the jury exercised its power of lenity to limit the punishment of the defendant).  Therefore, we will not speculate as to the reasoning behind the jury’s decision not to convict Knox of intentional second-degree murder. 

The evidence contradicts Knox’s contention that he was only trying to cut the victim.  The medical examiner testified that the 3.1-inch blade produced a wound to the victim’s neck that was 4.7 inches deep, and that the wound was caused by a forceful blow.  Another resident in Christle’s duplex who witnessed the altercation testified that Knox positioned his fist as if he were going to punch the victim.  The position of the knife in Knox’s hand and the depth of the resulting wound support a finding that Knox, in an excessive use of force given the circumstances, stabbed the victim.

Third, the state argues that it disproved the duty-to-retreat element beyond a reasonable doubt by demonstrating that Knox had at least two opportunities to retreat.  The state contends that Knox could have retreated when the victim first shoved him, or after the victim pushed him to the ground.  Knox argues that because of his bad back and with the victim standing over him, running away was not an option.  Knox further argues that he waited until the victim attempted to strike him again before he used his knife. 

The jury was not persuaded by Knox’s claim.  As previously discussed, other than Knox’s testimony, there is no evidence in the record that the victim was standing over Knox or came into physical contact with Knox while he was on the ground.  Knox himself testified that the victim did not kick, punch, choke, or jump on him while he was on the ground.  Moreover, Knox admitted that he could have retreated by showing the victim his knife and then backing away.  We therefore conclude that there is sufficient evidence in the record for the jury to find beyond a reasonable doubt that Knox did not retreat to avoid the danger presented by the victim when reasonable means existed for him to do so.

Finally, Knox argues that the duty to retreat may not apply to the unintentional use of deadly force.  Knox does not present, nor are we aware of, any Minnesota case law that supports this proposition.  In any event, because we have concluded that the state met its burden in disproving one of the elements of Knox’s self-defense claim, and because we conclude that even if Knox had established the elements of self-defense, he used excessive force under the circumstances, we decline to consider Knox’s argument in this regard.


Finally, Knox raises two claims in his pro se reply brief, both of which are without merit. 

Knox first argues he was denied his right of due process because the jury was not instructed on what Knox contends is a “third verdict” of “hung jury.”  During jury deliberations, the jury sent the trial court a note indicating it was at an impasse on one of the two counts.  The trial court instructed the jury to continue its deliberations “for a period of time.”  Acknowledging the nature of the charges, the trial court noted that the jury’s one-day deliberation was not a sufficient period of time for the trial court to conclude that the jury would be unable to arrive at a verdict if given a longer period of time to deliberate.  The trial court then reiterated CRIMJIG 3.04 (Unanimous Verdict — Duty of Jurors to Discuss). 

Relying on State v. Martin, 297 Minn. 359, 211 N.W.2d 765 (1973), Knox argues that the jury should have been instructed that a hung jury is a legitimate end to a trial.  But district courts are allowed "considerable latitude" in the selection of language for jury instructions.  State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quotation omitted).  Moreover, we note that Knox did not request such an instruction, nor did he object to the instruction given by the trial court.  Furthermore, Knox’s reliance on Martin is misplaced.  Martin does not stand for the proposition that a “hung jury” is a “third verdict.”  Rather, in Martin the supreme court simply required that supplemental instructions to a jury that has indicated it is unable to reach a decision on a charge cannot be coercive.  In other words, the trial court cannot use language that instructs the jury that it must reach a verdict of either guilty or not guilty.  Martin, 297 Minn. at 368-69, 211 N.W.2d at 770.  A hung jury is a legitimate end to a trial.  Id. at 367, 211 N.W.2d at 769.  Here, the record indicates the trial court properly instructed the jury using 10 Minnesota Practice, CRIMJIG 3.04 (1999).  This instruction was given to the jury prior to deliberations and again when the jurors informed the trial court that they were at an impasse on one count.  Nothing in the record suggests that the trial court commanded the jury to reach a verdict, and the trial court did not abuse its discretion by instructing the jury as it did.

Second, Knox contends that the evidence does not support his second-degree intentional murder conviction.  But the jury acquitted Knox of second-degree intentional murder and instead found him guilty of unintentional second-degree murder in violation of Minn. Stat. § 609.19, subd. 2(1) (2000).  A defendant carries a heavy burden in overturning a jury verdict.  State v. Bowser, 305 Minn. 431, 437, 234 N.W.2d 890, 893 (Minn. 1975).  Knox has failed to meet this burden.  Our review of the record indicates that the evidence sufficiently supports the jury’s verdict.