This opinion will be unpublished and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,
Luanyo Alomo Duangi,
Mower County District Court
File No. K20266
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Patrick Flanagan, Mower County Attorney, Courthouse, 201 First Street Northeast, Austin, MN 55912 (for respondent)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.
On January 10, 2002, while appellant Luanyo Duangi was awaiting trial for a second-degree assault charge, Austin police officers David McKichan and Jeff McCormack went to Duangi’s residence to execute an arrest warrant for violating the conditions of his release.
Duangi answered the door. After the officers told Duangi that they had a warrant for his arrest, he asked to see a copy of the warrant. The officers explained that the conditions of his release were revoked, but they did not produce a copy of the warrant. As they spoke, Duangi and the officers moved into the residence. Duangi again asked to see the warrant and sat on the couch.
After several minutes of discussion, the officers concluded that Duangi would not voluntarily submit to the arrest. The officers then removed their mace canisters. Duangi challenged the officers to spray him, which the officers did. As Duangi covered his face with his hands, the officers instructed him to stand up and put his arms behind his back. Duangi did not comply. McCormack grabbed Duangi and forced him to lie face down on a nearby bed. Duangi resisted the officers’ attempt to handcuff him and tried to bite and kick the officers. As McKichan leaned forward to bring Duangi’s arm down, Duangi cocked his head back and hit McKichan on the chin. As a result, one of McKichan’s teeth was broken and another was cracked.
The state charged Duangi with third- and fourth-degree assault. At his first appearance on these charges, Duangi insisted that he would represent himself. The district court informed Duangi of the charged offenses and their penalties and advised him against representing himself. The district court also advised Duangi to file a new application for a court-appointed attorney to represent him in the instant case.
At his arraignment hearing, Duangi’s court-appointed attorney for the second-degree assault case appeared on Duangi’s behalf. When the district court asked Duangi why he had not applied for a court-appointed attorney in the instant case, Duangi again stated that he intended to represent himself. The district court advised that, at the omnibus hearing, if Duangi persisted with his choice to represent himself, it would inquire as to Duangi’s ability to represent himself with the appointment of standby counsel.
At a pretrial hearing in the second-degree assault case, Duangi’s counsel indicated that he had only been appointed to represent Duangi in the second-degree assault case. Counsel also advised that Duangi wanted to waive his right to counsel in both cases. The district court told Duangi, “you certainly have the right, although I will obviously be scheduling a specific hearing to make complete inquiries as to your understanding with regard to the legal system and the charges against you.” The district court also ordered counsel to remain the attorney of record for the instant case. The district court indicated that, after an inquiry at the omnibus hearing in the instant case scheduled for later that morning, it would determine whether Duangi met the requirements to permit him to proceed pro se. There is no record of that hearing.
Duangi went to trial on the second-degree assault charge prior to the trial in the instant case. In the second-degree assault trial, the district court denied Duangi’s motion to proceed pro se. See State v. Duangi, No. C9-02-1432 (Minn. App. July 29, 2003). On the first day of trial in the instant case, counsel again stated that Duangi wished to represent himself. After referring to the inquiry in the earlier trial, the district court asked Duangi if he wanted to represent himself. Duangi replied affirmatively. Although the district court advised Duangi against proceeding pro se, it ruled that Duangi could represent himself, provided he follow the procedural rules and present his case in a nondisruptive manner. The district court appointed Duangi’s attorney from the earlier trial to serve as standby counsel. Duangi gave opening and closing statements and testified on his own behalf. Duangi’s standby counsel conducted voir dire and cross-examined McKichan and McCormack.
During the final jury instructions, the district court elaborated on the proof-beyond-a-reasonable-doubt instruction by giving a description of a “capricious doubt.” Duangi did not object to the instructions that were given. The jury returned a verdict of guilty on each count. This appeal followed.
Duangi argues that the district court erred in determining that he voluntarily and intelligently waived his right to counsel. Both the United States and Minnesota Constitutions guarantee the right to counsel to an accused in criminal proceedings. U.S. Const. amend. VI, amend. XIV, § 1; Minn. Const. art. I, §§ 6, 7. A defendant may give up the right to counsel if the waiver is voluntary and intelligent. Faretta v. California, 422 U.S. 806, 818, 95 S. Ct. 2525, 2532-33 (1975); Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 1023 (1938); State v. Worthy, 583 N.W.2d 270, 275 (Minn. 1998). Constitutional issues are questions of law, which we review de novo. State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999).
As a predicate to waiving the right to counsel, the Minnesota Supreme Court has adopted a two-pronged inquiry. State v. Camacho, 561 N.W.2d 160, 171 (Minn. 1997); see also Godinez v. Moran, 509 U.S. 389, 400-01, 113 S. Ct. 2680, 2687-88 (1993). First, if the district court has reason to doubt the defendant’s competency, the district court must make “a finding that the defendant is competent to stand trial.” Camacho, 561 N.W.2d at 171 (quotation omitted). Second, the district court must satisfy itself that the defendant’s waiver of the constitutional right to counsel is voluntary and intelligent. Id.
Because Duangi’s competency to stand trial was never questioned and the district court had no reason to doubt Duangi’s competency, our only inquiry is whether Duangi’s waiver was voluntary and intelligent. Godinez, 509 U.S. at 401-02, 113 S. Ct. at 2687-88; State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990). We will not reverse a district court’s finding that a defendant knowingly and intelligently waived the right to counsel unless that finding is clearly erroneous. Worthy, 583 N.W.2d at 276.
To determine whether a waiver of the right to counsel is voluntary and intelligent, the district court “should comprehensively examine the defendant regarding the defendant’s comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant’s understanding of the consequences of the waiver.” Worthy, 583 N.W.2d at 276 (quoting Camacho, 561 N.W.2d at 173). The focus of the inquiry is to ensure that the defendant is “aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835, 95 S. Ct. at 2541 (quotation omitted); see also Camacho, 561 N.W.2d at 173.
In the absence of a “detailed on-the-record colloquy,” an intelligent waiver can be inferred from the surrounding circumstances. Worthy, 583 N.W.2d at 276; see also State v. Brodie, 532 N.W.2d 557, 557 (Minn. 1995). This requires an examination of “the particular facts and circumstances surrounding [a] case, including the background, experience, and conduct of the accused.” Worthy, 583 N.W.2d at 275-76 (quoting Zerbst, 304 U.S. at 464, 58 S. Ct. at 1023). If a defendant has consulted with an attorney prior to the waiver, the district court can “reasonably presume that the benefits of legal assistance and the risks of proceeding without it ha[ve] been described to [the] defendant in detail by counsel.” State v. Jones, 266 N.W.2d 706, 712 (Minn. 1978) (citation omitted). In Worthy, the Minnesota Supreme Court found that, although the district court’s inquiry did not include a recitation of the charges or potential punishments, the defendants’ waivers of the right to counsel were valid where the defendants had prior experience in the criminal justice system, had been provided with competent legal representation until the morning of trial, had consulted with counsel prior to the waiver, and had been advised that they would be expected to conduct their own defense and held to the same standard as an attorney if they discharged their counsel. Worthy, 583 N.W.2d at 276-77.
Here, Duangi argues that his waiver was not voluntary and intelligent because the district court’s inquiry did not strictly adhere to the provisions of Minn. R. Crim. P. 5.02. We disagree. Rule 5 sets forth the procedures to be followed at a defendant’s first appearance in a criminal case. Minn. R. Crim. P. 5.02, subd. 1(4), provides:
If a defendant appearing without counsel charged with a felony or gross misdemeanor does not request counsel and wishes to represent himself or herself, the court shall ensure that a voluntary and intelligent written waiver of the right to counsel is entered in the record. * * * Prior to accepting any waiver, the trial court shall advise the defendant of the following: the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel. The court may appoint the public defender for the limited purpose of advising and consulting with the defendant as to the waiver.
We note that the elements of a Rule 5.02 inquiry are practically identical to those of the suggested inquiries articulated in Worthy and Camacho. Each requires inquiry into the defendant’s comprehension of the charges and punishments, an explanation of possible defenses and mitigating factors, and a recitation of all facts relevant to the defendant’s understanding of the consequences of waiver. Strict adherence to Rule 5.02 is one means to ensure a valid waiver. In the absence of such adherence, however, a district court’s determination that a defendant’s waiver of the right to counsel is voluntary and intelligent need not be reversed where the facts and circumstances surrounding a case, including the defendant’s experience and conduct, make clear that the defendant “knows what he is doing and [that] his choice is made with eyes open.” Worthy, 583 N.W.2d at 276 (quotation omitted); see also In re Welfare of G.L.H., G.E.H., 614 N.W.2d 718, 723 (Minn. 2000) (analyzing Minn. R. Crim. P. 5.02, subd. 1(4), and stating that failure to follow “a particular procedure” does not per se invalidate a waiver of the right to counsel), cert. denied, 531 U.S. 967, 121 S. Ct. 403 (2000).
Here, the record establishes that Duangi understood the significance and consequences of his decision to waive his right to counsel. When Duangi asked to represent himself, the district court informed Duangi of the charged offenses and their penalties and advised Duangi against proceeding pro se. The district court then directed Duangi to file an application for a court-appointed attorney to assist him in his understanding of the law and the evidence. Duangi repeated his request at his arraignment hearing, where the district court advised that if Duangi still wanted to waive his right to counsel at the omnibus hearing, the district court would inquire as to his ability to intelligently and voluntarily do so.
At trial, Duangi again requested to proceed pro se. Duangi had been tried and convicted of the second-degree assault charge one month earlier. Referring to that proceeding, Duangi told the district court “[t]his is my second time now. I think I know much about this.” Duangi explained that his decision to waive his right to counsel was motivated by a disagreement with his counsel, who advised Duangi that his proffered defense was not a defense to the charged offense. The district court accepted Duangi’s waiver and appointed standby counsel. The record establishes that, when Duangi waived his right to counsel, he was aware of the consequences of his decision. Accordingly, we conclude that the district court’s finding that Duangi voluntarily and intelligently waived his right to counsel is not clearly erroneous.
The record further establishes that, although Duangi proceeded pro se, he received the benefit of counsel throughout the entire proceeding. Cf. Worthy, 583 N.W.2d at 276-77 (holding waiver valid when defendants had competent legal representation in the case before they fired their counsel the morning of trial). Duangi’s standby counsel successfully moved to exclude Duangi’s prior conviction, conducted voir dire, cross-examined both police officers, and secured a modification of the jury instructions on Duangi’s behalf. Thus, Duangi “had an opportunity to consult freely with standby counsel, who, for all intents and purposes, represented defendant at trial.” State v. Krejci, 458 N.W.2d 407, 413 (Minn. 1990).
Duangi next contends that the district court’s jury instruction diluted the beyond-a- reasonable-doubt standard. Generally, a party who fails to object to jury instructions at trial waives the right to raise the issue on appeal. State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001). Jury instructions regarding the burden of proof, however, concern a fundamental principle of law and, therefore, may be raised on appeal even when no objection was made at trial. State v. Smith, 655 N.W.2d 347, 352 (Minn. App. 2003).
The district court has considerable latitude in selecting the language used in its jury instructions and no error results in the absence of “a material misstatement of the law when read in the context of the instructions as a whole.” State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quotation omitted), cert. denied, 498 U.S. 1030, 111 S. Ct. 687 (1991). The district court “is not required to define reasonable doubt, or articulate the standard, with any specific language, so long as, taken as a whole, the instruction correctly conveys the concept.” Smith, 655 N.W.2d at 352 (citing Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243 (1994)). But a new trial is warranted “if the beyond-a-reasonable-doubt standard is diluted, because the standard triggers constitutional due-process rights.” Smith, 655 N.W.2d at 352 (citing State v. Tibbetts, 281 N.W.2d 499, 500 (Minn. 1979)).
A district court can be secure that the beyond-a-reasonable-doubt standard is correctly defined if it uses CRIMJIG 3.03. Smith, 655 N.W.2d at 352; State v. Sap, 408 N.W.2d 638, 641 (Minn. App. 1987). CRIMJIG 3.03 provides:
Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.
10 Minnesota Practice, CRIMJIG 3.03 (1999).
Here, the district court instructed the jury at the close of the evidence:
Now we have used that term “proof beyond a reasonable doubt.” That is defined as such proof as ordinarily prudent men and women would act upon in their own most important affairs. In other words, the things they would do in their life. A reasonable doubt is a doubt based upon reason and common sense. It doesn’t mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt. It means exactly what it says, beyond a reasonable doubt. And I sometimes use a short illustration on that. If a witness were to tell you that -- the same thing as the little boy told the teacher -- I didn’t bring my homework because my dog ate my homework, or maybe because the dog ate my computer. It’s possible, but it’s not reasonable. That is what capricious means. It does not mean beyond all possibility of doubt. It means beyond a reasonable doubt.
We disagree with Duangi’s argument that the district court misstated the state’s burden of proof by stating “[i]n other words, the thing they would do in their life” and by using an illustration of capricious doubt. When the jury instructions are read as a whole, this instruction’s deviation from CRIMJIG 3.03 is minimal and its effect does not dilute the standard. The district court’s “short illustration” concludes by reiterating correctly that the standard of proof “does not mean beyond all possibility of doubt. It means beyond a reasonable doubt.” The district court’s elaboration was not a substitute for CRIMJIG 3.03. Rather, this instruction was given in the context of instructions as to the presumption of innocence and other references to the proof-beyond-a-reasonable-doubt standard. State v. Dunkel, 466 N.W.2d 425, 430 (Minn. App. 1991) (holding that beyond-a-reasonable-doubt standard was not diluted where the district court instructed the jury on presumption of innocence, instructed the jury several times that they had to find the defendant guilty beyond a reasonable doubt, and modeled its jury instruction on CRIMJIG 3.03). The high burden of proof embodied by the beyond-a-reasonable-doubt standard was clearly set forth in the district court’s instructions to the jury. Accordingly, we conclude that no error was committed in instructing the jury.
Duangi also challenges his convictions on the ground that the evidence is insufficient to support the guilty verdicts for third- and fourth-degree assault. Our review of a claim of insufficient evidence 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 a guilty verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). In so doing, we 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). We will uphold the verdict if the jury, giving due regard to the presumption of innocence and the state’s burden of proof beyond a reasonable doubt, reasonably could have found the defendant guilty of the charged offenses. State v. Thomas,590 N.W.2d 755, 757-58 (Minn. 1999).
Under Minnesota law, “[w]hoever assaults another and inflicts substantial bodily harm” is guilty of assault in the third degree. Minn. Stat. § 609.223, subd. 1 (2000). Substantial bodily harm is “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member.” Minn. Stat. § 609.02, subd. 7a (2000). “Whoever physically assaults a peace officer * * * [and] the assault inflicts demonstrable bodily harm” is guilty of a felony violation of assault in the fourth degree. Minn. Stat. § 609.2231, subd. 1 (2000). Demonstrable bodily harm is a term of common usage and has been defined as “capable of being perceived by a person other than the victim.” State v. Backus, 358 N.W.2d 93, 95 (Minn. App. 1984).
Section 609.02, subdivision 10(2), defines assault as the “intentional infliction of or attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd. 10(2) (2000).
“Intentionally” means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result. In addition, * * * the actor must have knowledge of those facts which are necessary to make the actor’s conduct criminal and which are set forth after the word “intentionally.”
Id., subd. 9(3) (2000). Intent is a state of mind, which can be established by reasonable inferences considered in light of all the surrounding circumstances, including the events before, during, and after the crime. State v. Andrews, 388 N.W.2d 723, 728 (Minn. 1986); State v. Johnson, 374 N.W.2d 285, 288 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985).
Here, both officers testified that Duangi resisted their attempts to handcuff him. McCormack testified that Duangi tried to bite and kick both officers. McKichan testified that, as he leaned forward to gain control of Duangi’s arm, Duangi cocked his head back, which collided with McKichan’s chin. McKichan had previously described Duangi’s action as a head-butt. Because the head-butt occurred in the midst of Duangi resisting arrest, the jury could reasonably infer that Duangi intentionally struck McKichan with his head. McKichan also suffered both substantial bodily harm (third-degree assault) and demonstrable bodily harm (fourth-degree assault) when one of McKichan’s teeth was cracked and another was broken by Duangi.
The crux of Duangi’s argument on appeal is that he was acting in self-defense and, therefore, did not possess the requisite intent. As an initial matter, Duangi had an affirmative duty to raise this defense at trial. State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000). His failure to do so constitutes waiver of this argument on appeal. Duangi testified that he was brutalized by the officers, but he denied either struggling against the officers or assaulting them. Credibility determinations are the province of the jury, not this court on review. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d 508 U.S. 366, 113 S. Ct. 2130 (1993); State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). The jury did not find Duangi’s testimony credible and rejected his lack-of-intent defense.
Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence here was sufficient to support Duangi’s convictions for third- and fourth-degree assault.
The state moved to strike the appendix to Duangi’s reply brief. The complete transcripts, however, are part of the record on appeal, and we have confined our review to matters that are properly contained in the record. Accordingly, we deny the motion to strike.
Affirmed; motion denied.
 Both cases were assigned to the same district court judge.
 There is no record of an omnibus hearing in this case. Having reviewed the record in the companion case, State v. Duangi, No. C9-02-1432, (Minn. App. July 29, 2003), it is clear that the district court examined Duangi regarding his request to discharge his attorney and waive his right to counsel in that case.