This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Jacob Scott Rice,
Filed June 26, 2007
Crow Wing County District Court
File No. KX-04-1766
Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Donald F. Ryan, Crow Wing County Attorney, Crow Wing
John Stuart, State Public Defender, Marie Wolf,
Assistant Public Defender,
Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
F A C T S
VanNest was attacked and severely beaten in the yard of a mobile home in rural
Shortly after the cars arrived, VanNest heard shouting from inside the home. As he was attempting to call for help on his cell phone, he was punched by Landon Hamilton, who had arrived in one of the cars and had been inside the home when VanNest heard the shouting. VanNest raised his fists to protect himself, and Hamilton called for Jacob Rice to come help him. VanNest testified at trial that Rice swung a weight-lifting bar at VanNest’s head, from VanNest’s right side. VanNest attempted to block the bar with his raised arms, but the blow fractured VanNest’s left arm and made enough contact with his head to knock him to the ground. Rice and Hamilton then took turns striking VanNest with the weight bar as he lay curled up on the ground. VanNest estimated that he sustained at least ten blows from the weight bar and that Rice was responsible for at least two. While one was striking VanNest with the weight bar, the other would kick and punch him. As a result of the assault VanNest suffered a broken right leg, a broken left ankle, a fractured arm, and more than forty bruises.
When the assault ended, Rice took out a butterfly knife, held it to VanNest’s throat, and threatened to kill him and his family if he told anyone about the fight. Rice then helped VanNest into the home and onto a couch. After Rice and Hamilton left, VanNest passed out from shock. When he regained consciousness, police had arrived at the home and arranged for an ambulance. Before VanNest was transported to the hospital, he told police that he had been attacked by Rice and Hamilton.
The police arrested Rice, and the Crow Wing County Attorney charged him with three counts of assault on VanNest, one count of assault on Joshua Watson, and one count of terroristic threats. The prosecutor later amended the complaint to add a charge of aiding and abetting first-degree assault on VanNest.
After a two-day trial, the jury found Rice guilty of all five assault charges. The state did not submit the terroristic-threats charge to the jury. The district court sentenced Rice to ninety-one months on the first-degree-assault conviction and a consecutive twenty-one months on the second-degree assault on Watson inside the home. Rice appeals only the first-degree-assault conviction, arguing that the evidence is insufficient to identify him as the person who attacked VanNest and that the jury instructions on the first-degree-assault charge were plain error.
D E C I S I O N
a challenge to the sufficiency of the evidence, we carefully examine the record
to ascertain “whether the jury could reasonably find the defendant guilty given
the facts in evidence and the legitimate inferences which could be drawn from
those facts.” State v. Miles, 585 N.W.2d 368, 372 (
Before trial, Rice stipulated that VanNest suffered great bodily harm. On appeal, Rice concedes that the state proved that VanNest was assaulted with a metal weight bar. But he contends that his conviction of first-degree assault must be reversed because “none of the witnesses except the complainant testified that they saw appellant hitting the complainant with a metal bar.”
is an act done with intent to cause fear in another of immediate bodily harm or
death; or the intentional infliction of or attempt to inflict bodily harm upon
identified Rice on the night of the assault and at trial as one of the two
people who attacked him and beat him with the weight bar. In direct examination at trial, the
prosecutor asked VanNest whether he saw who first struck him with the weight
bar. VanNest answered unequivocally, “Yes,
I did. It was Jake [Rice].” VanNest also testified that he “saw it clear
as day that it was Jake Rice and Landon Hamilton, that Jake had made the first
initial blow [with the bar], Landon had made the first contact with the fist,
but it shortly there changed because he took [the bar] from Jake and hit me
with it.” VanNest’s testimony at trial
was consistent with his statements to the
Haag, who drove Rice and Hamilton to the mobile home and drove them home after
the assault, also testified. In a signed
statement provided to a
other people who were part of the group at the mobile home also testified. Although their testimony related primarily to
the knife injury that Rice inflicted on Watson, their testimony was consistent
with VanNest’s on the events leading up to the assault, and one of them told a
In a selective review of the evidence, Rice contends that it is not legally sufficient to support his conviction. For two reasons, we reject his claim that the evidence is insufficient. First, Rice’s account of the evidence ignores the applicable standards of review and is also incomplete. Rice reargues the credibility of the witnesses and the weight to be given their testimony. He contends that VanNest’s testimony should be disregarded because VanNest was inconsistent when he said that he saw Rice strike him with the bar and also said that his vision was obstructed by blood in his eyes and that it was “lights out” as soon as he was hit. But VanNest explained that “lights out” meant that he was traumatized, not unconscious, and that he was aware of what was going on around him during the assault. Similarly, Rice takes out of context VanNest’s statement “[a]nd the last thing I remember is a crack of, I’m assuming, the weight bar.” VanNest appears to be using the phrase to refer to the last thing in that series, not the last thing he remembers about the entire incident. In the sentence immediately following, VanNest says, “And then I proceeded to see the weight bar as it snapped through my leg and over my head a couple of times.” A fair reading of VanNest’s testimony demonstrates that he is recounting the events in a divided sequence, not that his testimony must be disregarded as fatally inconsistent.
Rice’s argument rests on an incorrect legal premise that the state must conclusively
prove that he struck VanNest with the weight bar to establish that he committed
first-degree assault. Rice acknowledges
that he was charged with aiding and abetting first-degree assault. The record provides ample evidence of Rice’s
participation in the assault and of his repeated hitting and kicking VanNest as
he lay on the ground. His active
participation and “knowing role in the commission of the crime” and his failure
to take “steps to thwart its completion” establish the elements necessary for
aiding and abetting an assault that inflicted great bodily harm. See
State v. Ostrem, 535 N.W.2d 916, 924 (
When viewed as a whole, the evidence was more than sufficient to allow the jury to find Rice guilty of first-degree assault for his role in the attack on VanNest.
district court instructed the jury on the standard to apply in determining
whether a defendant is liable for the crime of another. The instructions included paragraphs from the
standard jury instruction. See 10
To impose liability for crimes of another, the state must show the defendant played some knowing role in the commission of a crime and took no steps to thwart its completion.
Inaction, knowledge, and passive acquiescence does not rise to the level of criminal culpability. Nevertheless, active participation in the overt act which constitutes the substantive offense is not required.
The defendant’s presence, companionship, and conduct before and after the offense are relevant circumstances from which the defendant’s criminal intent may be inferred.
did not object to the jury instruction.
A defendant who does not object to jury instructions at trial generally
forfeits any right to challenge those instructions on appeal. State
v. Goodloe, 718 N.W.2d 413, 422 (
We review jury instructions “in their
entirety to determine whether they fairly and adequately explain the law of the
case.” State v. Peterson, 673 N.W.2d 482, 486 (
disagree with Rice’s contention that these added instructions incorrectly state
the law. The supreme court, in a recent
opinion, used virtually the same language in stating the substantive law on
criminal liability for crimes of another.
Rice also argues that these
paragraphs are improperly taken from a supreme court opinion examining the
sufficiency of the evidence to sustain an aiding-and-abetting conviction. See
Ostrem, 535 N.W.2d at 924 (using language found in instruction while
considering sufficiency of evidence in aiding-and-abetting appeal); State v. Gassler, 505 N.W.2d 62, 68 (
in their entirety, the district court’s instructions accurately state the
law. Instructing the jury with language
other than that which is provided in standard jury instructions may risk error,
but it does not equate to error. See State v. Turnipseed, 297 N.W.2d 308,