This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994).

                          State of Minnesota

                            in Court of Appeals
                              C8-95-1787

     State of Minnesota,
     Respondent,
     vs.

John Phillip Palmer,
     Appellant.
     Filed May 14, 1996
Affirmed as Modified
Lansing, Judge

Faribault County District Court

File No. K294362

Hubert H. Humphrey III, Attorney General, Mary J. Theisen, Robert A.
Stanich, Assistant Attorneys General, Suite 1400, 445 Minnesota Street, St.
Paul, MN 55101 (for Respondent).

Joel R. Welder, Faribault County Attorney, Faribault County Courthouse,
Post Office Box 5, Main Street, Blue Earth, MN 56013 (for Respondent).

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State
Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN
55414 (for Appellant).

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and
Short, Judge.
                                     
                        Unpublished Opinion

LANSING, Judge (Hon. Douglas L. Richards, District Court Trial
Judge)

A jury convicted John Palmer on four criminal charges for conduct that
began with an altercation when he was asked to leave a bar in Blue Earth.
Palmer appeals from his convictions for fourth degree assault, terroristic
threats, obstructing legal process, and disorderly conduct on the following
grounds: (I) insufficient evidence to support his assault conviction, (II)
the district court's rejection of a proposed jury instruction, (III)
improper prosecutorial comments in closing argument, and (IV) multiple
sentences for offenses arising from the same conduct. We reject the
arguments challenging the convictions but modify Palmer's sentence to
vacate a duplicative sentence for obstructing legal process. Affirmed as
modified.
                                 I

A person who ``assaults an employee of a correctional facility *** while
the employee is engaged in the performance of a duty imposed by law, policy
or rule, and inflicts demonstrable bodily harm'' is guilty of fourth degree
assault. Minn. Stat. 𨺹.2231, subd. 3 (1994). In determining whether
the evidence is sufficient to prove the elements of the assault, we view
the evidence in the light most favorable to the verdict and evaluate
whether the facts and the legitimate inferences provide a reasonable basis
for a jury to convict. State v. Merrill, 274 N.W.2d 99, 111 (Minn.
1978).

A jailer at the Faribault County Law Enforcement Center testified that
Palmer kicked his hand as he tried to remove Palmer from the back seat of
the squad car. The jailer stated that these kicks caused a cut on his hand
that bled for about ten minutes. Palmer asserts that the state failed to
prove that he intentionally caused the injury because the jailer might have
been injured by scraping his hand on the car door as he attempted to pull


Palmer from the car. But there is no evidentiary basis for Palmer's
conjecture that the injury occurred in a different way.

Palmer acknowledges that he kicked the jailer. The jailer described the
kicking, saw the cut and noticed the bleeding after physically dragging the
kicking Palmer to the booking room, and knew of no cause for the injury
other than Palmer's kicking his hand. This evidence was sufficient for the
jury to determine that Palmer's kicks caused the jailer's injury. See
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (reviewing court
assumes the jury believed the state's witnesses and disbelieved contrary
evidence); State v. Collard, 414 N.W.2d 733, 736 (Minn. App. 1987)
(a jury may freely reject defendant's alternative explanations of the
evidence), review denied (Minn. Jan 15, 1988).
                                 II

The district court refused to instruct the jury that transitory anger is a
defense to the charge of terroristic threats, and Palmer contends that this
constitutes reversible error. A district court is well within its
discretion in refusing to read an instruction that is not warranted by fact
or law. State v. Ruud, 259 N.W.2d 567, 578-79 (Minn. 1977), cert.
denied, 435 U.S. 996 (1978).

We note initially that neither the record nor the transcript contains such
a proposed jury instruction; the transcript only states that defense
counsel took exception to the absence of a transitory anger instruction.
But whether or not an instruction was properly requested, a transitory
anger instruction is unsupported by either the facts or the law.

The evidence demonstrates that the threats were not transitory; Palmer
continued the threats and calumny over an extended period of time. With
respect to the legal basis, courts have routinely rejected the defense of
transitory anger for the crime of terroristic threats. E.g., 451 N.W.2d
55, 63 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990); State
v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987), review denied
(Minn. Jan. 20, 1988). The district court did not abuse its discretion by
refusing the instruction.
                                III

Palmer asserts that he was denied a fair trial because of two allegedly
improper statements made in the prosecution's closing argument. First,
Palmer alleges that the prosecutor called him an animal. The transcript
does not support this claim. The transcript instead contains the
prosecutor's statement that Palmer ``kicked and screamed and yelled''
``[l]ike an animal.'' (emphasis added). The characterization is
strong but not improper.

The second allegation of prosecutorial misconduct involves the prosecutor's
reference to Palmer's defense of voluntary intoxication. The prosecutor
called the defense a ``smoke screen'' that had nothing to do with the case.
The prosecutor went on to say that Palmer could not lean on that defense
because everything pointed to the fact that he knew what he was doing and
intended his acts.

Prosecutors may specifically argue that there is no merit to a particular
defense in light of the evidence. State v. Salitros, 499 N.W.2d 815,
818 (Minn. 1993). But Minnesota courts have cautioned prosecutors from
belittling a particular defense in the abstract. Id. The
prosecutor's comments, when read as a whole, relate to the evidence
presented rather than a general disparagement of the defense. The
prosecutor indicated that Palmer's conduct demonstrated conscious intent.
Using the term ``smoke screen'' is arguably improper, but the effect of the
characterization is diminished by the context.

Even if the statements were improper, the error is harmless. The harmless
error standard for less serious prosecutorial misconduct is whether the
misconduct likely played a substantial part in influencing the jury to

convict. State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200
(1974). We conclude that the statements did not substantially influence the
jury's verdict because (1) the district court read several instructions
that would have mitigated any improper influence on the jury, including an
instruction that the attorneys' statements were not evidence in the case;
(2) substantial evidence supported Palmer's convictions, including
eyewitness and victim testimony and audio and video tape recordings of his
conduct; and (3) the comments were a small part of a lengthy and otherwise
proper closing argument. See State v. Washington, 521 N.W.2d 35, 40
(Minn. 1994) (holding prosecutor's improper closing argument did not
require reversal); State v. Daniels, 332 N.W.2d 172, 180 (Minn.
1983) (same).
                                 IV

Palmer asserts that by separately sentencing him for obstructing legal
process and disorderly conduct, the district court impermissibly sentenced
him for multiple offenses committed as a part of a single behavioral
incident. Minn. Stat. 𨺹.035, subd.1 (1994); State v. Hawkins,
511 N.W.2d 9, 13 (Minn. 1994). When the offenses alleged as a single course
of conduct are intentional crimes, a reviewing court considers whether the
events were separated by time and place, as well as whether the offenses
were motivated by the desire to obtain a single criminal objective.
Hawkins, 511 N.W.2d at 13.

The disorderly conduct sentence is based on conduct separate from the later
assault and terroristic threats. Palmer's disorderly conduct occurred at
the bar, physically and chronologically separate from the police car and
police station where the assault and threats took place. The apparent
motivation for the disorderly conduct was Palmer's desire to stay at the
bar, or at least depart on his own terms. This is separate from the
motivation for his conduct at the police station. The differences in time,
place, and motivation all suggest that the disorderly conduct arose out of
a separate course of conduct from the assault and terroristic threats.

But the conduct supporting Palmer's conviction for obstructing legal
process appears to be part of the same course of conduct as the assault and
terroristic threats. Palmer was resisting arrest; he simultaneously kicked,
thrashed, and threatened the officers. This conduct all occurred in the
police car and at the law enforcement center and appears to have been
motivated by the same objectives: escape from custody and expression of his
displeasure with the police. The similarities in time, place, and
motivation indicate that Palmer's obstruction of legal process arose out of
the same behavioral incident as the assault and the terroristic threats and
should not be sentenced separately. Consequently, we vacate the district
court's concurrent ninety-one-day sentence for obstructing legal process.
Affirmed as modified.