This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Lorna Ann Hanes,


Filed August 10, 2004


Stoneburner, Judge


Hubbard County District Court

File No. K702711


Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, Second Floor, 301 Court Avenue, Park Rapids, MN 56470 (for respondent)


John M. Stuart, Minnesota Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Schumacher, Judge; and Klaphake, Judge.



U N P U B L I S H E D  O P I N I O N




            Lorna Ann Hanes appeals her conviction of assault in the third degree, arguing that the evidence was insufficient to sustain the conviction and that the district court erred in instructing the jury.  Because the evidence was sufficient to sustain the conviction, and the jury instruction defining assault in the third degree was adequate, we affirm.



At times relevant, appellant Lorna Ann Hanes was renting a room in a house where M.J.B. was also staying.  One day, several people gathered at the house and M.J.B. was cooking chili for the group, most of whom had been drinking throughout the day.  At some point in the evening, M.J.B. was severely beaten and repeatedly kicked in the head and face.  M.J.B. does not remember much about the incident but recalls looking out of the corner of his eye and seeing Hanes and Hanes’s friend, David Brandenburg, before “everything went black.”  M.J.B. woke up in the hospital.

            Prior to the assault, M.J.B. had argued with Ralph Windschitl and another person over war and taxes.  M.J.B. also argued with Brandenberg, who was a suspect in a burglary at the home of M.J.B.’s former sister-in-law.  Mary Beth Hein, who was present, testified that Hanes disliked M.J.B. and displayed an antagonistic attitude toward him that evening, threatening to hurt or assault him.  Hein testified that Hanes repeated her feelings of animosity toward M.J.B. after the assault.  But Hanes testified that she and M.J.B. were planning to take a trip to Texas together and that she was looking forward to the trip.

            Windschitl testified that late in the evening, while M.J.B. was in the doorway area between the kitchen and living room, Brandenburg struck M.J.B, knocked him down, and continued to beat him.  Windschitl testified that, as M.J.B. lay on the floor, Hanes started kicking him in the head with her boots.  When Windschitl could not stop the assault, he ran out of the house to the law-enforcement center a few blocks away and returned with a state trooper, who radioed for additional officers.

            Deputy Johannsen arrived and walked up to the house, where he observed M.J.B. lying motionless in the middle of the living room with his head bloody and a pool of blood around him.  Hanes was sitting on the couch.  M.J.B. was at her feet.  Brandenberg, who was walking toward the rear of the house, tried to slip away from the trooper and eventually had to be shackled and carried to the squad car.  Windschitl shouted that Hanes and Brandenburg were the two who assaulted M.J.B.

            Blood on Hanes’s clothing, including her boots, was found to be M.J.B.’s.  A forensic scientist from the Bureau of Criminal Apprehension testified that Hanes’s blue jeans had both blood-contact stains and impact splatter stains.  Impact blood splatter was also found on Brandenburg’s right shoe and blue jeans.

            Hanes testified that she began drinking at about 3:30 or 4:00 o’clock in the afternoon, when Brandenburg arrived, that she passed out about the time it was getting dark outside, and she slept in a brown recliner in the living room.  She got up at some point and went to the bathroom.  She returned to sit on the couch and went back to sleep.  She did not recall anything of a fight or assault and testified that she did not assault M.J.B.  She said that she did not realize that M.J.B., who was at her feet as she sat on the couch, was injured.  She said she only woke up when the police arrived.

            Hanes was charged with assault in the third degree.  A jury found her guilty, and she was sentenced.  This appeal followed.



I.          Sufficiency of evidence

            Hanes argues that the evidence was insufficient to prove beyond a reasonable doubt that she assaulted M.J.B.  In considering a claim of insufficient evidence, this court’s review is limited to a careful 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 that 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 mainly 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). 

In this case, eyewitness testimony and physical evidence support the verdict.  Hanes argues that Windschitl’s testimony is not credible because he was drunk and had lied earlier in the evening about being in Vietnam.  But credibility determinations are the province of the jury.  State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990).  The evidence was sufficient to sustain the verdict.

II.        Jury instructions

            Hanes next argues that the district court committed plain error by failing to incorporate the definition of “assault” into the instruction on the elements of assault in the third degree.  Appellant argues that omitting the definition of assault eliminated the element of intent from the elements of assault in the third degree and constituted error.

            Because appellant did not object to the jury instructions at trial, we review this claim for plain error.  Minn. R. Crim. P. 26.03, subd. 18(3), 31.02; State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001).  Plain error is: (1) error; (2) that is plain; and (3) that affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  An appellant bears the “heavy burden” of showing that the error affects substantial rights, which burden is satisfied if the appellant shows that the error was prejudicial and affected the outcome of the case.  Id. at 741.       

            Jury instructions must be considered as a whole and not in isolation.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  Trial courts are allowed “considerable latitude” in determining the language and propriety of a specific instruction.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  The jury was instructed, in part, that:

The statutes of Minnesota provide that whoever assaults another and inflicts substantial bodily harm is guilty of a crime, assault in the third degree—substantial bodily harm.


The elements of—the elements of assault in the third degree are:

First, the defendant assaulted [M.J.B.].


Second, the defendant inflicted substantial bodily harm on [M.J.B.]. “Substantial bodily harm” means bodily harm that involves a temporary but substantial disfigurement; that involves a temporary but substantial disfigurement, which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or causes a fracture of any bodily member.  It is not necessary for the State to prove that the defendant intended to inflict substantial bodily harm, but only that the defendant intended to commit the assault.


The instruction given is an accurate definition and description of the elements of third-degree assault as set out in the standard jury instructions in 10 Minnesota Practice, CRIMJIG 13.15, 13.16 (1999).  There is nothing erroneous or misleading in the instruction.  Elements that are stated correctly, although without detailed definitions are, as a matter of law, not erroneous.  Peterson v. State, 282 N.W.2d 878, 881 (Minn. 1979).

Hanes’s reliance on State v. Johnson, 374 N.W.2d 285 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985), is misplaced.  The holding in Johnson has been restricted to “the peculiar facts of the case.”  State v. Erdman, 383 N.W.2d 331, 333 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986) (holding that defendant waived claim of failure to instruct on specific intent by failing to request instruction).    

            Appellant’s defense was not based on lack of intent or accident.  She claimed that she was not the person who assaulted M.J.B.  We conclude that the jury instructions adequately addressed the element of intent and did not constitute plain error.



                                                                                    Dated:  July 29, 2004