This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





James Edward Moran,



Filed July 3, 2006


Parker, Judge*



Freeborn County District Court

File No. K1-03-489



Craig S. Nelson, Freeborn County Attorney, David J. Walker, Assistant County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN 56007 (for respondent)


John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

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

U N P U B L I S H E D   O P I N I O N


            On appeal from conviction of second-degree assault, appellant James Moran argues that evidence that the victim suffered a broken nose in a bar fight with appellant was insufficient to support a conviction for that degree of assault where only one of the eyewitnesses saw a baseball bat being used in the fight, the victim did not know what hit him, and the baseball bat was found outside the bar.  We affirm. 


In considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” is sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the fact-finder believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Second-degree assault is defined as assault with a dangerous weapon.  Minn. Stat. § 609.222, subd. 1 (2002).  Assault is defined as “[a]n act done with intent to cause fear in another of immediate bodily harm or death . . . .”  Minn. Stat. § 609.02, subd. 10(1) (2002).  A dangerous weapon can be “any . . . 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 (2002). 

Here, A.K. testified at trial that in the afternoon of April 7, 2003, he was involved in a scuffle with appellant at a bar in Myrtle.  A.K. also testified that later that day, he was sitting in a different bar when appellant’s brother entered the bar.  According to A.K., he believed that appellant’s brother wanted to fight, and, therefore, he walked toward him.  Testimony indicated that after the two began fighting, they wrestled their way into the foyer to the bar, a rectangular area between the interior door to the bar and a second door that leads outside.  According to A.K., once they were inside the foyer area, appellant struck him in the face with a hard object.  As a result, A.K. suffered a comminuted fracture of the nose.  In fact, A.K. testified that air was coming out of the bridge of his nose where it had been broken and displaced.

Appellant acknowledges that the victim was seriously injured and that a baseball bat satisfies the definition of a dangerous weapon.  But appellant argues that there was insufficient evidence to prove beyond a reasonable doubt that a baseball bat was used in the fight.  Thus, appellant contends that because the state failed to prove the elements of second-degree assault, the case should be remanded to the district court for resentencing on appellant’s conviction of third-degree assault.

Appellant’s argument relies heavily on the fact that all but one of the witnesses admitted that they did not actually see a bat used in the fight.  But although most of the witnesses did not see appellant use the bat in the fight, M.K., the victim’s sister, testified that she saw appellant strike her brother in the face with a bat.  The jury was aware of M.K.’s relationship to the victim, and appellant was provided ample opportunity to discredit M.K.’s testimony.  The jury, however, is in the best position to judge the credibility of witnesses, and the jury apparently believed M.K.’s testimony and disbelieved any testimony to the contrary.  See Moore, 438 N.W.2d at 108 (stating that the reviewing court must assume the fact-finder “believed the state’s witnesses and disbelieved any evidence to the contrary”).  Moreover, the record reflects that a bat was found in the foyer of the bar immediately following the fight, and there is testimony indicating that nobody saw a bat in the foyer earlier in the evening.  Finally, Officer Dopplehammer testified that he observed what appeared to be droplets of blood on the handle of the bat. 

Appellant contends that the alleged droplets of blood on the bat were observed on the handle of the bat, which is inconsistent with where blood would logically be located if the bat had been used to strike A.K.  Appellant further contends that police failed to test the bat for blood and fingerprints, lending credence to his argument that there is insufficient evidence to show that the bat was used in the fight.  We disagree.  Although this information might have been helpful, it is not necessary to sustain appellant’s conviction of second-degree assault.  M.K.’s testimony, along with the fact that a bat was recovered in the bar’s foyer immediately following the fight, is sufficient to prove beyond a reasonable doubt that appellant struck A.K. with a bat.


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