This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-1461

 

State of Minnesota,
Respondent,

vs.

Nicholas Dean Messer,
Appellant.

 

Filed August 15, 2003

Affirmed

Peterson, Judge

 

Todd County District Court

File No. K101515

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Mark R. Ireland, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN† 55101-2134; and

 

Gaylord A. Saetre, Todd County Attorney, 221 First Avenue South, Long Prairie, MN† 56347 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN† 55414 (for appellant)

 

 

††††††††††† Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Huspeni, 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 conviction of criminal damage to property, appellant Nicholas Dean Messer argues that the district court (1) committed plain error in instructing the jury, as part of its instruction on the use of reasonable force in defense of property, that Messer had a duty to retreat or avoid the danger if reasonably possible, and (2) abused its discretion in admitting testimony from a police officer about why the officer did not charge the victim with trespassing on Messerís property.†† We affirm.

FACTS

††††††††††† Since 1997, Messer has lived on a 70-acre farm in Todd County, where he raises horses and cocker spaniels and grows hay.† International Paper Corporation (IPC) owns a 160-acre tract adjacent to Messerís property, on which it grows trees for use in paper production.

In the spring of 1998, IPC sent Messer a letter informing him that its adjacent property would be aerially sprayed with herbicides, pesticides, and fertilizers.† Messer testified that that was the only letter he received from IPC, but that IPC sprayed its land every year.

Messer testified:† During the spring and summer of 1999, his horses became ill, and several mares aborted their foals.† Believing that the horsesí health problems were attributable to the spraying, Messer contacted IPC and spoke to Richard Pierce, a production manager for IPC.† Once that spring, Pierce came to Messerís property and met personally with Messer regarding the horsesí health problems.† Pierce was arrogant and unhelpful, so Messer told Pierce not to come onto his property again.† Veterinarians who examined Messerís horses could not determine whether the health problems were related to IPCís spraying without either killing a horse or performing blood tests for which IPC refused to pay.

In 2000, Messer had a disagreement with IPC about a fence constructed near the boundary between his property and IPCís property.† Messer testified that IPC agreed to pay for half of the labor and materials costs but then refused to pay any labor costs.† Messer submitted a bill for $2,533.08 to IPC, but IPC paid only $651.10.† As a result, according to Messer, he could not afford to complete the fence.† Pierce testified that Messer did not contact IPC about the fence until after it had already been constructed.† Pierce testified that IPC agreed to pay for all of the materials.† An IPC employee inspected the fence and determined that the bill submitted by Messer was about four times higher than the actual cost of fence materials.† Messer testified that during a phone conversation with Pierce, Messer told Pierce not to come onto his property.

On July 2, 2001, Messer called IPCís help line and spoke to Linda Sears.† A message about Messerís call was forwarded to Pierce.† Messer testified that he instructed Sears that he did not want Pierce to come to his property, but the message forwarded to Pierce did not contain that information.

In his call to the help line, Messer complained that IPC sprayed chemicals on its property on a windy day in June 2001 and that his horses were suffering from neurological problems and his hay was dying.† Pierce denied that IPC performed any aerial or ground application of pesticides in 2001.† He testified that in June 2001, IPC aerially spread 300 pounds of solid or granular fertilizer on its property adjacent to Messerís property, which can be done on a windy day because the fertilizer drops straight down and does not drift.

Pierce testified:† After Messerís call to the help line, Pierceís supervisors instructed him to set up a meeting among Messer, Pierce, and Pierceís supervisor to get more detailed information from Messer.† On July 12, 2001, Pierce drove by Messerís property, saw Messerís truck parked in the yard, and decided to stop.† Pierce parked near the house and got out of his truck.† Messer, who had just come outside from a barn or a shed, asked Pierce who he was and what he wanted.† When Pierce identified himself, Messer got upset and went into a tirade about helicopters spraying and pesticide applications.† Messer demanded that Pierce go with him to look at a sick foal in a pasture about 300 feet from the house.† Messer used obscene language and accused IPC of killing his horses and hurting his dogs.† After showing Pierce the foal, Messer demanded that Pierce leave his property, so Pierce began walking back to his truck.† No physical contact occurred between Pierce and Messer.† When Pierce got to his truck, he told Messer that he had come to set up an appointment between Messer and Pierceís supervisor.† Messer began shouting, ďGet out,Ē so Pierce started getting into his truck.† Messer, who was about five feet away from the truckís fender, picked up a rock and threw it at the truck, striking the windshield and breaking it.† Messer threw two more rocks at the truck; one hit the hood and caused slight damage and the other hit the windshield and caused no apparent damage.† Pierce backed his truck out of the driveway and drove away.

††††††††††† Messer testified:† As soon as Pierce identified himself, Messer told him to leave the property, but Pierce insisted on seeing the sick foal.† Pierce and Messer got into a shouting match, with Messer repeatedly yelling at Pierce to leave his property, and then Pierce pushed Messer hard up against the barn, causing Messer to fall backwards.† Despite Messer repeatedly telling Pierce to leave his property, Pierce refused to leave.† Messer used his cell phone to call 911, and a dispatcher told him to just tell Pierce to leave.† When Messer was about 40 to 45 feet away from Pierce, who was about 30 to 35 feet away from his truck, Messer picked up a couple of handfuls of gravel with some little rocks in it and threw the gravel at Pierce in an effort to get Pierce to leave his property.† Messer did not intend to hit Pierce, just to scare him, because Pierce refused to leave and was kicking and swatting at Messerís dogs.† Pierce finally got into his truck and drove away.

Messer called 911 a second time and asked to speak to Deputy Peter Mikkelson.† Mikkelson testified that Messer did not mention any physical assault or pushing or shoving by Pierce.

D E C I S I O N

1.†††††††† An appellate court reviews a district courtís jury instructions for abuses of discretion and errors of law.† State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).† District courts have considerable latitude to select the language of jury instructions as long as the instructions do not materially misstate the law.† State v. Carothers, 594 N.W.2d 897, 899 (Minn. 1999).

††††††††††† After instructing the jury about a personís right to use reasonable force to resist an assault or a trespass, the district court instructed the jury:

The rule of self-defense and defense of property does not authorize one to seek revenge.† The legal excuse of self-defense or defense of property is available only to those who act honestly and in good faith.† This includes the duty to retreat or avoid the danger if reasonably possible.

 

††††††††††† Messer argues that the district court erred in instructing the jury about the duty to retreat.† Messer did not object to the instruction before the district court.† When there was no objection to the jury instructions at trial, an appellate court has discretion to consider a claimed error in the instructions if it is plain error affecting substantial rights.† State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

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.

 

Id. (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997)).

Minn. Stat. ß 609.06, subd. 1(3)-(4) (2000), authorize the use of reasonable force to resist an offense against the person or by a person in lawful possession of real or personal property to resist ďa trespass upon or other unlawful interference with such property.Ē† Minnesota statutes do not address the duty to retreat; rather, the duty-to-retreat doctrine has evolved under common law.† Carothers, 594 N.W.2d at 900.† A duty to retreat does not apply to claims of defense of dwelling or self-defense within the home.† Id. at 903.

††††††††††† The supreme court has explained the justification for the exception to the duty to retreat as follows:

We require reasonable retreat in self-defense outside the home because the law presumes that there is somewhere safer to go--home.† But self-defense in the home is based on the premise that the home is a place critical for the protection of the family.† Requiring retreat from the home before acting in self-defense would require one to leave oneís safest place.† * * * [I]t is not now and never has been the law that a man assailed in his own dwelling is bound to retreat.† If assailed there, he may stand his ground and resist the attack.† He is under no duty to take to the fields and the highways, a fugitive from his own home.† Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home.

 

State v. Glowacki, 630 N.W.2d 392, 401-02 (Minn. 2001) (quotation and citations omitted).† The justification for this exception from the duty to retreat is limited to the home, and Minnesotaís appellate courts have not extended the exception beyond the home.† Therefore, because Messer was outside his house when he threw the rocks, the district court did not err in instructing the jury on the duty to retreat.

2.††††††††††† Messer argues that the district court erred in admitting Mikkelsonís testimony that he did not charge Pierce with trespass because Pierce said that he left Messerís property when requested and that Messer had not previously instructed Pierce not to come onto his property.† Messer argues that Mikkelsonís testimony was expert testimony on the credibility of a witness.† See Minn. R. Evid. 608(a) (stating the credibility of a witness can be supported by evidence in the form of an opinion only when the character of that witness has been attacked in that respect); State v. Grecinger, 569 N.W.2d 189, 193 (Minn. 1997) (stating because an expert with special knowledge has the potential to unduly influence a jury, the district court must take special care ďto ensure that the defendantís presumption of innocence does not get lost in the flurry of expert testimony and, more importantly, that the responsibility for judging credibility and the facts remains with the juryĒ).†

††††††††††† ďA defendant claiming [that] the district court erred in admitting evidence bears the burden of proving the admission was erroneous and prejudicial.Ē† State v. Rhodes, 627 N.W.2d 74, 84 (Minn. 2001) (citation omitted).

[T]he question is whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict; to put it another way, if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had not been admitted, then the error in admitting the evidence was prejudicial error.

 

State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

††††††††††† The testimony to which Messer objects consists of two sentences in a transcript of more than 200 pages of witness testimony.† The state did not present Mikkelson as an expert on Pierceís credibility.† Both Messer and Pierce testified extensively, so the jury had ample opportunity to make its own credibility determination.† There were credibility problems with Messerís testimony.† He did not report the alleged assault on his person by Pierce when he initially spoke to Mikkelson.† He testified that he presented IPC with an estimate of the fence cost, but there was evidence that he presented IPC with what appeared to be a final bill for more than four times the actual cost of the fence.† Messer claimed that he annually sent letters to IPC stating that Pierce was not to come onto his property, but the only letter to that effect admitted into evidence was postmarked August 7, 2001.† Under these circumstances, even if the district court erred in admitting Mikkelsonís testimony, there is not a reasonable possibility that the verdict might have been more favorable to Messer if the evidence had not been admitted.

††††††††††† Affirmed.



*†† Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.