This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed December 7, 2004
Hennepin County District Court
File No. 03001528
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge; Randall, Judge; and Willis, 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 first-degree assault of a peace officer, appellant argues that the evidence was insufficient as a matter of law to support the conviction. Regarding both that first-degree-assault conviction and a separate conviction of second-degree assault, appellant argues that the district court abused its discretion by refusing to give the jury a voluntary-intoxication instruction. Because the evidence is sufficient for a reasonable jury to convict appellant of first-degree assault of a police officer and we find no abuse of discretion by the district court, we affirm.
On January 6, 2003, Minneapolis Police Officer Duy Ngo was off-duty, working as a security guard employed by Catholic Charities at its homeless shelter in Minneapolis. Officer Ngo wore his Minneapolis Police Department uniform and carried his firearm, which is allowed by department policy.
At approximately 9 p.m., appellant Santos Rivera-Ruis arrived at the homeless shelter looking for a place to sleep. William Fisher, the coordinator at the homeless shelter, told Rivera-Ruis that the shelter was full for the evening. According to Fisher, Rivera-Ruis became “grumpy,” “mad,” and “yell[ed]” when he was not given a place to sleep. Fisher asked Officer Ngo to escort Rivera-Ruis from the building.
Officer Ngo testified at trial that he asked Rivera-Ruis to leave several times, but Rivera-Ruis refused, and Officer Ngo physically escorted Rivera-Ruis from the building. Officer Ngo further testified that (1) Rivera-Ruis remained on the sidewalk outside of the building, told Officer Ngo that he was “going to kill [him,]” and pantomimed holding a rifle in his hands, aiming with one eye and saying, “Boom, boom, boom”; (2) when Rivera-Ruis was 16 to 21 feet from Officer Ngo, Rivera-Ruis took out a knife, held it in the air with his right hand, again told Officer Ngo that he was going to kill him, ran towards Officer Ngo, and then turned and ran off; (3) Officer Ngo pursued Rivera-Ruis down the street and into a parking lot, where he caught up with Rivera-Ruis; (4) Rivera-Ruis then turned and swung the knife at Officer Ngo; Officer Ngo leaped back, and the knife cut his shirt near his abdomen; and (5) the incident ended when Officer Ngo handcuffed Rivera-Ruis.
Rivera-Ruis testified that earlier on the day of his encounter with Officer Ngo, he had drunk two liters of vodka, three drinks containing whiskey, and eight beers. Rivera-Ruis’s alcohol concentration was 0.156 at 11 p.m., nearly two hours after his arrest. Rivera-Ruis testified that after Officer Ngo escorted him out of the homeless shelter, he was “sick” and “dizzy.” He also testified that Officer Ngo assaulted him after he swore at the officer and denied that he threatened Officer Ngo or that he had a knife at the time of the incident.
In January 2003, the state charged Rivera-Ruis with one count of second-degree assault with a dangerous weapon under Minn. Stat. § 609.222, subd. 1 (2002). In March 2003, the state also charged Rivera-Ruis with one count of first-degree assault of a peace officer under Minn. Stat. § 609.221, subd. 2(a) (2002). A jury found Rivera-Ruis guilty on both counts, and this appeal follows.
D E C I S I O N
Rivera-Ruis argues that Officer Ngo was not engaged in the performance of a duty imposed by law, policy, or rule under Minn. Stat. § 609.221, subd. 2(a) (2002), when the incident occurred, and, thus, the evidence was insufficient as a matter of law to convict Rivera-Ruis of first-degree assault of a peace officer under that statute. First-degree assault of a peace officer occurs when a person “assaults a peace officer or correctional employee by using or attempting to use deadly force against the officer or employee while the officer or employee is engaged in the performance of a duty imposed by law, policy, or rule.” Id. (emphasis added). An off-duty peace officer can act in a dual capacity as both a peace officer and a security guard. State v. Childs, 269 N.W.2d 25, 27 (Minn. 1978).
The state introduced into evidence a portion of the Minneapolis Police Department Manual providing that Minneapolis Police Department officers “engaged in outside employment wearing the MPD uniform or in plainclothes, presenting themselves as Minneapolis police officers, are subject to the rules and regulations of the MPD.” Minneapolis, Minn., MPD Police Policy & Procedural Manual § 3–801 (2000). There was evidence that Officer Ngo was in uniform and was holding himself out to the public as a police officer while he was working at the homeless shelter. A reasonable jury could find, therefore, that Officer Ngo was subject to the rules and regulations of the Minneapolis Police Department when he encountered Rivera-Ruis and that he was engaged in the performance of a duty imposed by law, policy, or rule when Rivera-Ruis used or attempted to use deadly force against him.
Rivera-Ruis argues that the district court abused its discretion by refusing to give a voluntary-intoxication instruction to the jury on both of the charges against him. Whether to give a requested jury instruction lies within the discretion of the district court, and an appellate court will not reverse absent an abuse of that discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).
Under Minnesota law,
[a]n act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.
Minn. Stat. § 609.075 (2002). “[T]o receive a requested voluntary intoxication jury instruction: (1) the defendant must be charged with a specific-intent crime; (2) there must be evidence sufficient to support a jury finding, by a preponderance of the evidence, that the defendant was intoxicated; and (3) the defendant must offer intoxication as an explanation for his actions.” State v. Torres, 632 N.W.2d 609, 616 (Minn. 2001).
At trial, Rivera-Ruis relied solely on Minn. Stat. § 609.075 in requesting a voluntary-intoxication instruction. He argues on appeal that the instruction should have been given under Torres because he was charged with specific-intent crimes, he was intoxicated, and his intoxication was offered as an explanation for his actions. The district court reasoned that a voluntary-intoxication instruction was inappropriate because “the offenses charged are . . . general intent crimes only as opposed to specific intent crimes [and the] voluntary intoxication defense does not apply in this case.”
It is not necessary for us to reach the issue of whether Rivera-Ruis was charged with general-intent or specific-intent crimes. As the district court noted, if the offenses are general-intent crimes, Minn. Stat. § 609.075 does not apply. And even if we assume that both offenses are specific-intent crimes, Rivera-Ruis offered no evidence that his intoxication explained his actions. Rivera-Ruis points to the testimony of Fisher, the shelter coordinator, but Fisher testified only that Rivera-Ruis was “grumpy,” “mad,” and he “yell[ed].” Being “grumpy” and “mad” would not make Rivera-Ruis incapable of forming the intent necessary to commit the offenses. Rivera-Ruis also points to his own testimony that he was “sick” and “dizzy” to show that he offered intoxication as an explanation for his actions. But the defense of intoxication relates to a defendant’s state of mind rather than to his physical control or coordination. Torres, 632 N.W.2d at 617; State v. Willey, 480 N.W.2d 127, 130 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). Thus, based on the evidence adduced at trial, the district court did not abuse its discretion by refusing to give a voluntary-intoxication instruction.