This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





John Douglas LaTarte,



Filed April 13, 2004

Klaphake, Judge


Itasca County District Court

File No. K1-02-794


Mike Hatch, Attorney General, Thomas R. Ragatz, Karen D. Olson, Assistant Attorneys General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 N.E. 4th Street, Grand Rapids, MN  55744 (for respondent)


Kenneth M. Bottema, 210 North Second Street, Suite 50, Minneapolis, MN  55401 (for appellant)


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

U N P U B L I S H E D   O P I N I O N


            Following a jury trial, appellant John Douglas LaTarte was convicted of second-degree assault with a dangerous weapon under Minn. Stat. § 609.222, subd. 1 (2000).  On appeal, he challenges the sufficiency of the evidence and argues that he did not use a deadly weapon and had no intent to cause serious bodily harm.  He also challenges the district court’s denial of his requests to instruct the jury on involuntary or voluntary intoxication.

            Because the jury could reasonably conclude that appellant was guilty of second-degree assault and because the district court did not abuse its discretion in denying appellant’s requested instructions on involuntary and voluntary intoxication, we affirm.



            In reviewing a claim of insufficiency of the evidence, “we review the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999) (quotation omitted).  Under this standard, a guilty verdict will be upheld if, giving due regard to the presumption of innocence and to the state’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty.  State v. Turnipseed, 297 N.W.2d 308, 313 (Minn. 1980); State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

            Here, appellant was found guilty of second-degree assault with a dangerous weapon.  Minn. Stat. § 609.222, subd. 1 (2002), provides that “[w]hoever assaults another with a dangerous weapon” is guilty of second-degree assault.  “Dangerous weapon” means “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).

            Appellant argues that the state failed to prove that the buck knife was designed as a weapon and capable of producing great bodily harm.  He cites In re Welfare of P.W.F., 625 N.W.2d 152 (Minn. App. 2001), a case in which a high school student was convicted of possession of a dangerous weapon on school property after he inadvertently brought a folding-type knife to school.  This court reversed, noting the absence of any evidence that the student used or intended to use the knife to produce death or great bodily harm or that the knife was designed as a weapon capable of producing such harm.  Id. at 154.  Here, evidence was presented to establish that appellant actually pointed the knife at the victim’s throat and chest and threatened to cut or stab him.  Thus, the state did not need to show that the knife was also designed as a weapon.

            Appellant further argues that the evidence fails to establish the requisite intent.  He insists that while he admitted that he had the knife in his possession, it was not open during his altercation with the victim.  He further insists that he did not intend to harm the victim, as evidenced by the fact that he ended the confrontation and handed the knife to the victim.  Nevertheless, the jury was entitled to believe the victim’s testimony and to disbelieve any testimony by appellant to the contrary.  Harris, 589 N.W.2d at 791 (stating that reviewing court must assume that jury believed state’s witnesses and disbelieved any evidence to the contrary).

            The victim testified that appellant directed the driver of the van in which they were riding to stop after turning onto a dead-end road.  Appellant grabbed the victim by the jacket, pulled him out of the van, and pushed him down a hill into a swampy or boggy area.  The victim claimed that appellant stated that “he had to kill me, he said . . . he hated to kill me but he was already paid to do it so that’s what he had planned on doing.”  Appellant pulled a knife on the victim, which he described as a buck knife with a five to six-inch long blade.  The victim testified that appellant put the knife to his throat and told him “maybe I should cut your throat.”  Appellant then pulled the knife back and put it up to the victim’s chest and said “maybe I should stab you here.”

            The victim testified that he was not going to go down without a fight and that he and appellant started wrestling around.  During the scuffle, appellant kicked the victim and shattered his right arm.  The victim testified that after his arm broke, appellant stated that “we’ve been friends too long” and “I can’t kill you.”  Appellant gave the knife to the victim, who threw it down on the ground.  The two then walked back up the hill, got into the van, and returned to the victim’s motel room.

            This court has upheld convictions for second-degree assault involving similar weapons displayed in similar circumstances.  See, e.g., State v. Patton, 414 N.W.2d 572, 574 (Minn. App. 1987) (holding that evidence was sufficient where jury reasonably concluded that defendant “brandished” knife in such a manner that jury could find that it was used as dangerous weapon); State v. Soine, 348 N.W.2d 824, 827 (Minn. App. 1984) (upholding conviction where jury could find that defendant held knife in his hand while he pointed it and shook it at victim, even though victim testified that she was not frightened), review denied (Minn. Sept. 12, 1984).  We therefore conclude that the evidence was more than sufficient to sustain appellant’s conviction for second-degree assault.


            Appellant challenges the district court’s refusal to give his requested jury instructions on involuntary and voluntary intoxication.  A defendant is only entitled to a requested instruction if there is evidence to support it.  State v. Daniels, 361 N.W.2d 819, 832 (Minn. 1985).  A district court commits no error in refusing to give a requested instruction unless it can be shown that the court abused its discretion in denying the request.  State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).

            The defense of involuntary intoxication is appropriate only where a defendant shows, by a preponderance of the evidence, that he was compelled to take the intoxicating substance; that his intoxication was caused by that substance and not by some other intoxicant; and that at the time of the assault, he was temporarily mentally ill.  State v. Voorhees, 596 N.W.2d 241, 250 (Minn. 1999).  An instruction on the defense of involuntary intoxication is rarely appropriate and seldom given.  City of Minneapolis v. Altimus, 306 Minn. 462, 472, 238 N.W.2d 851, 858 (1976).

            To receive a voluntary intoxication jury instruction, a defendant must be charged with a specific intent crime, establish that he was intoxicated, and offer intoxication as an explanation for his actions.  State v. Torres, 632 N.W.2d 609, 616 (Minn. 2001); State v. Jacobs, 292 Minn. 41, 43-44, 192 N.W.2d 816, 818 (1971). 

            Here, appellant claimed that he thought he was taking Tylenol-3, but “unwittingly ingested” Klonopin, an antidepressant, prior to the commission of the second-degree assault.  Appellant claimed that he was unaware of the effect that drug would have on the alcohol he had consumed earlier in the evening.

            Appellant failed, however, to prove that he actually took the Klonopin, failed to establish that he was intoxicated, let alone temporarily mentally ill at the time of the assault, and failed to show that any state of intoxication he might be in was caused solely by the Klonopin and not by any other intoxicant he consumed that evening.  Other witnesses who observed or spoke to appellant during that time and immediately after his arrest generally confirmed that he did not appear intoxicated or under the influence of any drugs.  And while appellant claimed that he could not remember anything after he returned to the motel room, he was able to give a statement to police following his arrest and to testify about the events in the woods.  We therefore conclude that the district court did not abuse its discretion by refusing to instruct the jury on the defenses of involuntary and voluntary intoxication.