This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Jeffrey Duane Biermaier,




Filed June 7, 2005


Huspeni, Judge*



Dakota County District Court

File No. TX-04-20651



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


David S. Kendall, LeVander, Gillen and Miller, 633 South Concord Street, Suite 400, South St. Paul, MN 55075 (for respondent)


David M. VanSickle, 413 Wacouta Street, Suite 100, St. Paul, MN 55101 (for appellant)



            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction of one count of fifth-degree domestic assault under Minn. Stat. § 609.2242, subd. 1(1) (2002).  Because the district court did not abuse its discretion in declining to instruct the jury that inferences drawn from circumstantial evidence must be consistent with the defendant’s presumption of innocence and that a finding of guilt based on circumstantial evidence must exclude all other rational hypotheses of innocence, and because the record evidence is sufficient to uphold the jury’s verdict, we affirm.


            Appellant Jeffrey Duane Biermaier was charged with two counts of domestic assault in violation of Minn. Stat. § 609.2242, subd. 1(1) (committing “an act with intent to cause fear in another of immediate bodily harm or death”), and subd. 1(2) (2002) (intentionally inflicting or attempting “to inflict bodily harm upon another”).  Tracy Biermaier, appellant’s estranged wife and the victim of the assault, testified at trial that appellant became angry with her when she refused to discuss their impending marital dissolution.  She testified that appellant said he never wanted to see her again, put his finger in her face, and pushed or hit her as she was putting on her shoes.  She testified that she “went flying,” landed over an ottoman, and her breath was knocked out.  She also testified that she felt fear of appellant after he shoved her, which caused her to run into a bedroom and lock the door.  Her daughter, who had entered the bedroom with her, called 911.

Officer Windschitl of the West Saint Paul Police Department testified that when he questioned appellant separately, appellant admitted that he had pushed the victim, causing her to fall.  Officer Windschitl agreed on cross-examination that he would have considered an admission important.  But Officer Windschitl did not prepare a report of the incident noting such an admission and did not have any field notes from the investigation.  Officer Muellner, the other responding officer, testified that appellant indicated that he and the victim were simply talking.  Muellner wrote a report of the incident that did not include reference to an admission by appellant.  Muellner also took a statement from appellant after arresting him in which appellant stated he “bumped” the victim.  The other witness at trial was the victim’s physician, who testified that he examined her after the incident and noted pain in her left flank area and tenderness on follow-up visit a week later. 

Prior to trial, appellant requested that the court instruct the jury “regarding the reasonable inference in favor of the defendant where it’s consistent with any rational hypothesis with regard to circumstantial evidence.”  The court permitted appellant’s counsel to refer to such a theory in his opening statement but withheld ruling on the request for instructions until after the presentation of evidence.  At the close of evidence, appellant requested that the jury be instructed that “reasonable inferences from circumstantial evidence be consistent with defendant’s presumption of innocence.”  The court did not give the requested instruction but did instruct the jury on circumstantial and direct evidence, the believability of witnesses and its role as judge of credibility, and the state’s burden of proof beyond a reasonable doubt. 

The jury convicted appellant of committing an act with intent to cause fear of immediate bodily harm or death and found him not guilty of intentionally inflicting or attempting to inflict bodily harm upon another.


I.        Requested Jury Instruction


Appellant’s theory of this case is that the victim felt fear due to withdrawal from anxiety medication and not because of any act on the part of appellant.  Therefore, he argues that because evidence of the victim’s fear was circumstantial, the trial court was required to instruct the jury that reasonable inferences should be drawn consistent with the presumption of innocence.

A district court’s refusal to give a requested jury instruction will be upheld on appeal unless the court abused its discretion.  State v. Beard, 574 N.W.2d 87, 92 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998). 

Appellant relies on State v. Jones, 498 N.W.2d 44 (Minn. App. 1993) (Jones I), for the proposition that failure to give the requested instruction is reversible error.  In Jones I, the trial court’s refusal to give a requested “reasonable hypothesis of innocence” instruction was found to be an abuse of discretion where the state’s case was built entirely on circumstantial evidence and “the . . . instruction did not give sufficient attention to the defense explanation for the incriminating circumstances.”  498 N.W.2d at 46.   The supreme court, on review of Jones I, however, did not agree that the trial court’s failure to give the instruction was an abuse of discretion.  State v. Jones, 516 N.W.2d 545, 548 n.4 (Minn. 1994) (Jones II) (noting disagreement while stating the court did not reach the issue).

Additionally, Jones I involved a murder conviction based solely on circumstantial evidence linking the defendant to the crime.  498 N.W.2d at 46-47.  This case, to the contrary, involves substantial direct evidence of appellant’s commission of the acts constituting the offense.  The victim testified that she experienced a forceful shove at appellant’s hands.  Testimony of a victim about the events or facts at issue is direct evidence.  State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991) (in sexual assault case, the victim’s testimony about what she experienced constituted direct evidence of the crimes at issue); see also Black’s Law Dictionary 577 (7th ed. 1999) (defining direct evidence as “[e]vidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.”).

Further, contrary to appellant’s argument, abundant caselaw holds that instructions such as the one requested by appellant are not mandatory.  In Beard, the defendant sought an instruction that “to convict [defendant] based solely on circumstantial evidence, the circumstantial evidence must be such as to exclude every reasonable hypothesis except guilt.”  574 N.W.2d at 92 (quotation marks omitted).  The trial court’s rejection of that requested instruction was upheld on appeal.  Id.  This court stated that “[d]etailed instructions on circumstantial evidence, such as the ‘reasonable hypothesis other than guilt’ language, although applied to appellate review of the sufficiency of the evidence, need not be given as part of the jury instructions.”  Id. (quoting State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980)).  We noted that the supreme court in Jones II “reaffirmed the Turnipseed holding that the instruction is not mandatory.”  Id. (citing Jones II, 516 N.W.2d at 548 n.4).  And we also cautioned that such a “detailed instruction on the weighing of circumstantial evidence risks jury confusion.”  Id.

Finally, in a case involving both circumstantial and direct evidence, the Minnesota Supreme Court held that an instruction similar to that requested by appellant was not required.  State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993).  The supreme court noted that the “rational hypothesis” language is a test for the sufficiency of the evidence on appeal when the conviction is based solely on circumstantial evidence.  Id.  “We believe that this test does not apply to jury instructions.”  Id.  “[T]he better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.”  Id. (quoting Holland v. United States, 348 U.S. 121, 139-40, 75 S. Ct. 127, 137 (1954)).

Evidence in the case before us included substantial direct evidence as well as some circumstantial evidence.  Therefore, it is likely that an instruction of the sort requested by appellant would have been confusing to the jury as predicted in Gassler and Beard.  The function of the jury, as fact-finder, is to consider all of the evidence presented; direct evidence is not considered preferable to circumstantial evidence.  And the jury should not be required to make an additional determination of which evidence is circumstantial and which is direct.

We conclude that if the instruction appellant requested was found to be unnecessary in Jones I and Beard, cases in which the state’s evidence was entirely circumstantial, we cannot conclude that the trial court’s failure to give the instruction here, in a case involving substantial direct evidence as well as some circumstantial evidence, was an abuse of discretion. 

II.        Sufficiency of the Evidence

Two days before the oral argument in this appeal, appellant alleged for the first time that the evidence was insufficient to convict him.[1]  He argues that because the jury acquitted him of fifth-degree assault in violation of Minn. Stat. § 609.2242, subd. 1(2) (2002) (intentionally inflicting or attempting “to inflict bodily harm upon another”), the victim’s testimony must have been found to be incredible because the jury did not find that she actually suffered bodily harm.  This argument lacks merit.

When reviewing a claim of insufficiency of the evidence, this court evaluates the record and legitimate inferences to be drawn from the facts in evidence in the light most favorable to the conviction.  Dale v. State,535 N.W.2d 619, 623 (Minn. 1995).  We assume that the fact-finder believed the state’s witnesses and rejected contradictory evidence.  Id.  Evidence is sufficient to support an element of a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a fact-finder could reasonably conclude that the element has been proved beyond a reasonable doubt.  State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995).  Witness credibility and the weight given to the evidence are issues for the trier of fact.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).

Appellant’s reliance on his acquittal of one count to bolster his claim of insufficiency of the evidence ignores the fact that the jury was not required to find that the victim suffered bodily harm in order to find appellant guilty of the count of which he was convicted.  The essential elements of assault in the fifth-degree are (1) committing “an act with intent to cause fear in another of immediate bodily harm or death,” or (2) intentionally inflicting or attempting “to inflict bodily harm on another.”  Minn. Stat § 609.224, subd. 1 (2002) (cited in Meintsma v. Loram Maint. of Way, Inc., 684 N.W.2d 434, 441 n.5 (Minn. 2004)).[2]  Appellant was convicted under the subdivision of the statute that requires only an act and intent.  There is no requirement that the victim actually suffer fear proximately caused by the actor’s actions.  It is “the intent of the actor, as contrasted with the effect upon the victim” that is the “focal point for inquiry.”  In re Welfare of T.N.Y., 632 N.W.2d 765, 769 (Minn. App. 2001).  “The crime is in the act done with intent to cause fear, not in whether the intended result is achieved.”  Id. (quoting State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998) (a case that upheld convictions of assault based on intent to cause fear of imminent bodily harm even though victims of the assault were sleeping and unaware that it had taken place)).

Intent, the primary element in an assault charge, may be proved through circumstantial evidence, including drawing inferences from the conduct of the defendant, the defendant’s words and actions, the character of the assault, and the events that occur before and after the assault.  In re T.N.Y., 632 N.W.2d at 769; State v. Kastner, 429 N.W.2d 274, 275 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988).  We recognize that “the effect of the assault on the victim is frequently introduced at trial as evidence of the defendant’s intent [although] it is not essential for a conviction.”  Hough, 585 N.W.2d at 396.  We also recognize appellant’s argument that a lack of fear caused by him could be circumstantial evidence that he did not have the required intent.  But we note significant evidence regarding the surrounding circumstances from which the jury could have determined that appellant did have the requisite intent to cause fear.  Appellant was angry and was discussing an emotionally charged topic, stated immediately before the shove that he never wanted to see the victim again, and put his finger in the victim’s face.  We must also assume that the jury believed the victim’s testimony regarding the forcefulness of the shove and her direct testimony that she was afraid of appellant, not afraid because of her anxiety medication.  We find that there is sufficient evidence to uphold the conviction.

The jury was properly instructed regarding the burden of proof and its role as the finder of fact, and we will not inquire into the reasons why a jury might have found appellant guilty of one count and not the other, as we are satisfied that the jury had sufficient evidence before it to convict appellant of the crime of committing an act with intent to cause fear of imminent bodily harm.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] Although we question the propriety of raising an issue at this stage of appellate proceedings, the state did not object to the last-minute new issue or argue that it was prejudiced by the issue being raised.  Thus, we will address the issue on the merits.

[2] Although appellant was convicted under Minn. Stat. § 609.2242, subd. 1(1), the statutes are nearly identical; the only difference is that Minn. Stat. § 609.2242 refers specifically to assault against a family or household member.