This opinion will be unpublished and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 Scott Lutz,



Filed November 9, 2004


Hudson, Judge


St. Louis County District Court

File No. K4-02-600828


Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, Minnesota 55802 (for respondent)


John S. Lind, 306 West Superior Street, Suite 920, Duluth, Minnesota 55802 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal from his conviction of second-degree assault, appellant John Scott Lutz argues that the trial court erroneously instructed the jury that he had a duty to retreat.  Appellant also claims that the evidence introduced at trial was insufficient to overcome his assertions of self-defense and defense-of-property, and that the prosecutor committed prejudicial misconduct in his closing argument by improperly shifting the burden of proof.  We affirm.


            On February 6, 2002, appellant took a loaded shotgun and confronted two men, Mark Braaten and David Lauseng, who were ice fishing on Little Markham Lake.  Appellant believed that the two men were trespassing on his property.  Appellant was subsequently charged with second-degree assault pursuant to Minn. Stat. § 609.222, subd. 1 (2002) and Minn. Stat. § 609.11, subd. 4 (2002).  At his jury trial, appellant asserted self-defense and defense-of-property.  The parties presented contrasting versions of events.

The state’s case

Mark Braaten and David Lauseng testified on behalf of the state.  On the morning of February 6, 2002, the two men took an ATV along a trail they believed to be situated on tax-forfeited property out to the middle of Little Markham Lake where they set up a portable fish house and began drilling holes.  Lauseng was on his knees adjusting the equipment when Braaten noticed an approaching ATV.  Appellant got off the ATV, jacked a shell in the shotgun, placed the gun up to his shoulder, and started walking towards Lauseng hollering “F’n this and “F’n that, get off my lake, this is my lake” with the shotgun leveled at Lauseng.  Appellant stopped about 10–20 yards from Lauseng, who believed that appellant was crazy and intended to shoot them for fishing on the lake.

Braaten put his hands in the air and approached appellant.  Braaten leaned forward and reached for his wallet to show appellant identification stating that the two were not on the lake to cause problems.  Appellant pointed the gun at Braaten and hollered “I don’t want to F’n know who you are because I F’n hate people.”  Appellant’s face was beet red and he started foaming at the mouth as he “herded” the two men together pointing the shotgun at whoever began to talk.  Appellant called the two men “dickweeds” and “weasels” and accused the two men of snooping around his barn and shed. 

Braaten and Lauseng began packing up their equipment shortly after appellant approached.  Roughly 10–15 minutes lapsed from the time appellant came out to when they had packed up their equipment and left.  Appellant continued to repeat that he did not want the two men on his property.  Neither Braaten nor Lauseng had a knife on their persons, but Braaten did have a Leatherman tool in its black leather case on his belt.  Appellant did not lower the shotgun throughout the entire confrontation and kept his right finger on the trigger.

Appellant’s case

            Appellant purchased the property surrounding Little Markham Lake from two separate owners who each indicated that there was no public access to the lake.  On the morning of February 6, 2002, appellant drove down to the lake to determine what was agitating his dog and observed an ice shelter, an ATV, and a man walking around (Lauseng).  Appellant retrieved a loaded shotgun and took his ATV down to the lake.

Appellant brought the shotgun because, in his experience, trespassers often become upset when asked to leave the property.  Appellant was alone and, because lingering injuries from an auto accident prohibited appellant from bending or twisting, he was in no physical condition to fight should a problem arise.  But, he had no specific intention to use the shotgun. 

            Appellant parked roughly 50 yards from Lauseng with the shotgun in a sling over his back.  He shifted the shotgun over to his right shoulder as he began walking towards Lauseng and stopped about 25 yards from Lauseng.  Appellant told Lauseng that he was trespassing on a private lake and had to leave.  The tenor of the conversation was serious, but neither party was yelling.  Lauseng threw down the beer can he was drinking from, walked back to the fish house, and began packing up his equipment. 

            Braaten then popped out of the fish house and passed Lauseng walking towards appellant.  Braaten told Lauseng to stop packing, stated, “f--k this guy,” and told Lauseng that they were not leaving.  Braaten started screaming that appellant pissed him off by bringing a gun onto the lake, and told appellant that appellant would get his ass kicked if he was not careful.  Braaten eventually calmed down and approached appellant, stopping within 25 yards of appellant while attempting to engage appellant in conversation.  Appellant repeatedly stated that the two men were trespassing, and told them to leave.

Appellant then perceived that Braaten intended to attack him.  Braaten began walking towards appellant and offered to shake appellant’s hand and show identification.  Appellant stated that he did not want to shake hands.  Braaten then appeared frustrated and threw his gloves on the ground.  Appellant could see what he thought was a fillet knife on Braaten’s belt as Braaten began rapidly closing the distance between them.  Appellant took the shotgun from his shoulder and held it in front of him at his waist.  When Braaten reached the 10- to 15-foot mark, appellant pointed the gun at Braaten and told Braaten not to come any closer.  Appellant’s ATV was 25 yards away, and he believed that he could not make it back to the ATV without risking his safety in his compromised physical condition.  Appellant yelled that he did not want anything to do with the two men and just wanted them to leave his lake.  Braaten began to leave and pack up the equipment.  Appellant did not follow the two men as they left and did not fire the shotgun.  The entire encounter lasted roughly 35 minutes. 

            Appellant’s chiropractor, Dr. Timothy McVean, was the only other defense witness.  He testified that on February 6, 2002, appellant received treatment for injuries sustained in a motor vehicle accident the year before.  Dr. McVean treated appellant for low back pain, rib pain, and neck pain that increased with physical activity such as bending, twisting, or lifting significant weight.  Appellant was on work restriction for three weeks following the accident, but that restriction had been lifted, and appellant was showing signs of improvement.

Jury instructions and closing arguments

When outlining the elements of defense of property for the jury, the court included an instruction in accordance with 10 Minnesota Practice, CRIMJIG 7.08 (4th ed. 1999) stating, “[t]he legal excuse of defense of property is available only to those who act in good faith.  This includes the duty to retreat or avoid danger if reasonably possible.”  Appellant objected to the instruction in chambers.

During the state’s closing argument the prosecutor made several remarks regarding Braaten and Lauseng’s status as trespassers.  Counsel noted:

If [appellant] is upset about people that have maybe busted into his garage a month earlier, upset about people coming onto the lake that he thinks he owns, he thinks he owns, his dog is barking, he has got to go to the chiropractor, his back is probably bothering him, he says no, I wasn’t that upset, no.  Baloney.


. . . .


What he did, he did not have the right to do under the law.  Even, even if these two men were trespassing, even if they were, okay?


. . . .


Mr. Keegan offered you his opinion.  He said I don’t think there is any question these people were trespassing.  I will rebut that by saying I don’t think that there is any question these people were not trespassing.  They did some research ahead of time, they wanted to find out how they could get onto the property, and this [is] a key distinction.


Appellant did not object to these statements at trial or seek a curative instruction.



            Appellant contends that the district court erroneously instructed the jury that appellant had a duty to retreat when resisting a trespass on his real property.  Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  A trial court is given considerable latitude in selecting the language of jury instructions, but instructions may not materially misstate the law.  State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997).  Appellate review is limited to whether the instruction constituted an abuse of discretion or an error of law.  State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).

Minnesota statutes do not specifically address the duty to retreat; rather, the duty-to-retreat doctrine is a product of common law.  State v. Carothers, 594 N.W.2d 897, 900 (Minn. 1999).  The Minnesota Supreme Court has not directly addressed whether a duty-to-retreat instruction is appropriate in defense-of-property claims outside the home, but it has recognized an exception for claims arising from confrontations inside a defendant’s home.  See State v. Glowacki, 630 N.W.2d 392, 401 (Minn. 2001) (finding no duty to retreat for self-defense inside the home); Carothers, 594 N.W.2d at 901 (finding no duty to retreat for defense-of-dwelling claims). 

The supreme court justified the exception in defense-of-dwelling claims by recognizing the unique position of the home as sacred for the protection of one’s family at common law.  Carothers, 594 N.W.2d at 900.

Mandating a duty to retreat for defense[-]of[-]dwelling claims will force people to leave their homes by the back door while their family members are exposed to danger and their houses are burgled.  Further, forcing a resident to retreat from the home is at odds with the historical notion of the home as a place critical for the protection of the family.  A duty to retreat is incompatible with the right to prevent the commission of a felony within one’s home.


Id. at 901.  Similarly, one has a duty to retreat in self-defense claims occurring outside the home because “the law presumes that there is somewhere safer to go—home.”  Glowacki, 630 N.W.2d at 401.

This court has upheld a duty-to-retreat instruction where the confrontation occurred outside the home.  See State v. Clayborne, 404 N.W.2d 385, 387 (Minn. App. 1987) (finding no error in a duty-to-retreat instruction where the defendant positioned at his screen door shot the victim on his front lawn), review denied (Minn. May 28, 1987).  Most recently, this court in an unpublished decision affirmed a duty-to-retreat instruction where appellant stood in his lawn and threw rocks at a trespasser noting: “[T]he justification for [the defense-of-dwelling] exception from the duty to retreat is limited to the home, and Minnesota appellate courts have not extended the exception beyond the home.”  State v. Messer, No. C5-02-1461, 2003 WL 21961366 at *3 (Minn. App. Aug. 15, 2003).

Appellant argues that the district court misconstrued the holdings in Glowacki and Carothers when it instructed the jury that appellant had a duty to retreat while defending his real property.  Specifically, appellant argues that, in Carothers, the supreme court rejected a duty to retreat in defense-of-dwelling claims arising from Minn. Stat. § 609.06, subd. 1(4) (2002).  The subdivision itself, however, is not limited to defense of property in one’s dwelling, but permits reasonable force in the protection of all real or personal property.  By extension, appellant argues, the duty to retreat is not universally applicable to all defense-of-property claims; rather, as Glowacki suggests, the duty to retreat should only apply to someone defending his/her real property when it is possible to retreat to the home.  Otherwise, the duty to retreat negates an individual’s right to be reasonably present on his or her real property.  Therefore, appellant contends that the district court erred by instructing the jury that appellant had a “duty to retreat or avoid the danger if reasonably possible.”

But, appellant’s argument misconstrues the controlling precedent as well as the nature of the duty-to-retreat instruction.  Glowacki and Carothers did not change the concept of the duty to retreat where reasonable.  Rather, the supreme court carved out an exception to the otherwise universally applied common law duty to retreat incorporated into Minn. Stat. § 609.06, subd. 1(4) for confrontations within the home, an exception recognized at common law.  There is no basis for extending the exception to real property in general because the justification for the exception—the unique sanctity of the home at common law—is inapplicable to confrontations occurring outside the home, particularly, as here, in the middle of a lake.  The supreme court has concluded that individuals should not be required to surrender their homes to potential assailants or burglars because the home is a sanctuary.  Glowacki, 630 N.W.2d at 399; Carothers, 594 N.W.2d at 903-04.  That logic does not extend to the surrender of real property.  Moreover, the duty-to-retreat instruction given by the trial court included a reasonableness inquiry, which permits an analysis of the individual circumstances confronting appellant at the time of the incident.  Accordingly, the trial court did not abuse its discretion in instructing the jury that appellant had a duty to retreat from the confrontation if reasonably possible. 


            Appellant next argues that the evidence presented at trial is insufficient to support a conviction because it did not prove beyond a reasonable doubt that appellant failed to use reasonable force in resisting the trespass, or that appellant could reasonably retreat. 

When reviewing a sufficiency-of-the-evidence claim, appellate courts are limited to ascertaining whether, given the facts on the record and drawing all legitimate inferences, a jury could reasonably conclude that the state proved the defendant’s guilt of the offense charged beyond a reasonable doubt.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).  The appellate court examines the evidence set forth in the record in the light most favorable to the jury’s verdict and assumes that the jury believed the state’s witnesses and disbelieved evidence contradicting those witnesses.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). 

Minnesota law authorizes the use of “reasonable force” upon or toward the person of another without the other’s consent “when used by any person in lawful possession of real or personal property . . . in resisting a trespass upon or other unlawful interference with such property.”  Minn Stat. § 609.06, subd. 1(4) (2002).  Once a defendant has successfully raised the affirmative defense of defense-of-property at trial, the state is required to prove beyond a reasonable doubt that the defendant used excessive force, or that the defendant used force beyond what would appear to a reasonable person in similar circumstances to be necessary to resist the trespass.  Included in the reasonableness inquiry is the requirement that appellant act in good faith and not out of a desire to seek revenge or to punish the trespassers.  Moreover, the concept of reasonableness incorporates a duty to retreat, or a duty to avoid the danger if reasonably possible.  10 Minnesota Practice, CRIMJIG 7.06 (4th ed. 1999); see also State v. Basting, 572 N.W.2d 281, 285 (Minn. 1997) (describing the reasonableness inquiry in a self-defense claim).

Appellant first argues that, given the gravity of the perceived threat, no reasonable jury could conclude that appellant used excessive force in defense of his property.  But, the only support for appellant’s version of events is appellant’s own testimony.  The jury was free to question appellant’s credibility and was under no obligation to believe appellant’s testimony.  See State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (stating that it is the province of the jury to determine the credibility of witnesses).  According to the state’s witnesses, appellant pointed a loaded shotgun at Braaten and Lauseng without provocation, appeared enraged and used profane language, and demanded that the two men leave the lake.  Appellant continued to point the shotgun at whoever was talking even while the two men packed up their equipment.  When the evidence is viewed in the light most favorable to the verdict, a jury could reasonably conclude that appellant’s use of a loaded shotgun constituted excessive resistance to the trespass.

Appellant next argues that the state failed to demonstrate beyond a reasonable doubt that appellant could have reasonably retreated from the confrontation.  Citing the testimony of Dr. McVean, appellant notes that the evidence established that appellant’s physical condition was compromised on February 6, 2002, and appellant had a limited range of movement.  Both versions of events establish that appellant was alone and a considerable distance from his ATV on a remote lake as Braaten approached him.  Appellant contends that, given his excited state and injured condition, no reasonable jury could conclude that appellant could have or should have exposed himself to additional injury by turning his back on Braaten to walk back to his ATV.  Yet, the evidence also establishes that appellant was the one in possession of a loaded shotgun.  And, both Braaten and Lauseng testified that they were unarmed except for a utility tool on Braaten’s belt.  Appellant was clearly physically capable of riding an ATV and walking towards the two men; from the evidence presented, the jury could reasonably conclude that appellant was likewise capable of walking backwards to his ATV to retreat from the confrontation.


            Finally, appellant claims that the prosecutor’s statements during his closing argument suggesting that Braaten and Lauseng were not trespassing shifted the burden of proof and amounted to prejudicial misconduct sufficient to warrant a new trial.  Appellant did not object to these statements at trial.  Generally, a defendant’s failure to object to a prosecutor’s closing argument or to request a cautionary instruction constitutes a waiver of the right to have the issue considered on appeal.  State v. Hunt,615 N.W.2d 294, 302 (Minn. 2002).  In the absence of a timely objection, appellant is only entitled to a new trial if “the alleged conduct was so clearly erroneous under applicable law and so prejudicial to the [appellant’s] right to a fair trial that the [appellant’s] right to a remedy should not be forfeited.”  Id.; State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

It is highly improper and prosecutorial misconduct to misstate the burden of proof in closing arguments.  State v. Coleman, 373 N.W.2d 777, 782 (Minn. 1985).  Prosecutors are free, however, to specifically argue that a particular defense or argument has no merit in view of the evidence.  State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993).  So long as the argument focuses on or highlights evidence that the state believes makes the defense impossible, rather than denigrates the defense, the argument is not improper.  State v. Johnson, 616 N.W.2d 720, 730 (Minn. 2000). 

Here, the prosecutor’s remarks did not shift the burden of proof or constitute misconduct.  Appellant’s defense at trial was self-defense and defense-of-property.  In order to satisfy its burden, the state was required to present evidence that negated an element of the defense.  In his closing, the prosecutor argued that evidence introduced by the state demonstrated that Braaten and Lauseng were not trespassing.  At no point did the prosecutor allude to the burden of proof or suggest that appellant failed to prove the two men were trespassing.  Accordingly, the prosecutor’s comments were neither clearly erroneous, nor prejudicial to appellant’s right to a fair trial.