This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Elfred William Petruk,



Filed March 30, 2004


Randall, Judge


St. Louis County District Court

File No. K2-01-601322



Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134 and


Alan Mitchell, St. Louis County Attorney, Courthouse, 100 North Fifth Avenue West, Duluth, MN  55802 (for respondent)


John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N


            On appeal from a conviction for fifth-degree felony assault, appellant argues that the evidence was insufficient to support his conviction.  We affirm.          


            Appellant, Elfred Petruck, was Desarey LaFave’s boyfriend and is the father of her three young children.  On December 26, 2001, LaFave was out of money and needed to buy infant formula.  LaFave had previously loaned appellant $3,000 and she decided to go see appellant and ask him to give her some money back, as she needed it for baby formula and food.   

            Appellant was staying in Room 25 at the Allyndale Motel in Duluth.  LaFave went to the motel and demanded that appellant give her some formula or some money for formula.  LaFave testified that she was hysterical and upset about the situation, and she said she became even more upset when she discovered that there was another woman in the hotel room with appellant.  After a brief “confrontation” with appellant, LaFave went down to the motel lobby and called the police.  Before the police arrived, LaFave drove away in her car. 

            Officer Brian Jones of the Duluth Police Department was informed of the situation and was told to stop LaFave’s car.  Officer Jones pulled LaFave over and observed that LaFave had been crying and was visibly upset.  Officer Jones testified that after he talked with her for a short while, the two went into a Greyhound Bus station lobby that was right next to where Officer Jones had stopped LaFave.  While they were in the bus station, Officer Jones noticed that LaFave had a red mark from just below her jaw line onto her neck area on the left side of her face.  Officer Jones took photographs of the red mark and LaFave proceeded to give Officer Jones a statement concerning the incident.  In her written statement, LaFave stated that she went to appellant’s room at the motel to get some money that appellant owed her.  LaFave said that appellant punched her on the left side of her face toward her ear, and that her ear was still ringing.

            At appellant’s trial however, LaFave testified for the defense.  LaFave testified that appellant did not punch her, but in fact only pushed her with his hand.  LaFave testified that she made the statement “because I was mad ‘cause I didn’t have no formula and I just blew everything out of proportion.”  LaFave indicated that the contact occurred inside the motel room.

            Also present at the scene was Dennis Roberts.  As a witness for the State, Roberts testified that he and his wife were looking for their daughter.  Their daughter had been missing for several days and the Roberts had received information that she might be in Room 25 of the Allyndale Motel in Duluth.  At approximately 9:00 in the evening, the Roberts arrived at the motel and proceeded to walk up to Room 25 and knock on the door.  There were lights on in the hotel room, but nobody responded to Roberts’s gestures. 
Roberts then walked down to the motel office and asked if his daughter was a registered guest.  The motel clerk responded in the negative and Roberts returned to his car. 

            Shortly thereafter, a man who was later identified as appellant, drove up in a large silver car and went into Room 25.  Dennis Roberts again walked up to Room 25 and knocked on the door.  He specifically called out loudly for his daughter to answer the door, but he received no response.  Eventually, Roberts returned to his vehicle and called the police. 

            While they were waiting for the police to arrive, Dennis Roberts observed a small red car drive up and a young lady get out.  Roberts noticed that the lady, who was later identified as LaFave, was upset and either walked in or was let in to Room 25.  A few minutes later, Roberts saw LaFave run out of the room with appellant directly behind her.  Roberts then observed LaFave stop and turn around.  As she turned around, Roberts watched as appellant struck LaFave twice, once with each hand.  The police arrived at the scene shortly thereafter, and at that time the Roberts discovered that their daughter was indeed present in Room 25. 

            Officer Mike Tusken interviewed appellant at the scene and appellant admitted that LaFave had come to his room.  Appellant also admitted that he had pushed LaFave out of his room, but he denied punching her.  Appellant was subsequently charged with felony fifth-degree assault.  The assault charge was enhanced to a felony due to the fact that
appellant had two prior assault convictions that appellant stipulated to prior to trial.  A jury found appellant guilty of the felony assault charge.  This appeal followed.


            Appellant argues that the evidence presented at trial was insufficient to support his conviction for fifth-degree felony assault.  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 jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must 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).  This is especially true when resolution of the matter depends primarily on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court 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).

            A person who commits an act with intent to cause another to fear immediate bodily harm or death, or intentionally inflicts or attempts to inflict bodily harm on another is guilty of fifth-degree misdemeanor assault.  Minn. Stat. § 609.224, subds. 1,2 (2000).  Pursuant to subdivision 4, the assault offense is enhanced to fifth-degree felony assault if the person commits the assault within three years of the first of any combination of two or more past qualified domestic violence-related offense convictions or adjudications of delinquency.  Minn. Stat. § 609.224, subd. 4(b) (2000). 

            Here, appellant asserts that LaFave’s testimony at trial was the correct explanation of the events that occurred on the night in question, and that LaFave simply exaggerated the events in the police report because she was upset that she did not have any infant formula or any money to buy more formula.  Appellant also contends that Dennis Roberts had a reason to exaggerate appellant’s conduct because he was looking for his daughter and suspected that his daughter was in the motel room registered to appellant.  Based upon these circumstances, and the fact that Roberts’s memory had faded since the incident, appellant claims that Roberts’s testimony was unreliable, LaFave was the more credible witness, and he could not be convicted on this record.  We disagree. 

            The jury heard LaFave’s trial testimony and did not accept it.  The jury also heard Dennis Roberts’s testimony and found his testimony to be more credible.  See State v. Pippitt, 645 N.W.2d 87, 94 (Minn. 2002) (stating that weighing the credibility of witnesses is a function exclusively for the jury).  Roberts’s testimony directly contradicted LaFave’s trial testimony, and was corroborated by the police report that was used to impeach LaFave.  Appellant’s claim that Roberts exaggerated the conduct because he suspected that his daughter was in the motel room was a credibility issue for the jury.  Evidently, despite Roberts’s closeness to the situation, the jury found Dennis Roberts credible.  At trial, Roberts’s memory as to every exact detail of the incident faded some since the date of the incident, but his alleged “memory failure” related to what LaFave did directly after appellant had hit her, not whether appellant actually hit her.  The red marks on LaFave’s face support Roberts’s testimony, and the marks are consistent with LaFave being struck on the face rather than being just pushed out of the motel room.  The evidence is sufficient to support appellant’s conviction for fifth-degree assault.