This opinion will be unpublished and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
C8-96-200

State of Minnesota,
Respondent,

vs.

Gary Lee Harskamp,
Appellant.

Filed July 23, 1996
Affirmed in part and remanded for resentencing.
Foley, Judge
*

Pipestone County District Court
File No. K2-95-224

Hubert H. Humphrey, III, Attorney General, Thomas Erik Bailey, Assistant Attorney General; 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; James E. O'Neill, Pipestone County Attorney, 114 North Hiawatha, Pipestone, MN 56164 (for Respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.

U N P U B L I S H E D O P I N I O N

FOLEY, Judge

Appellant Gary Harskamp challenges his conviction for second-degree assault claiming the district court erred by refusing to instruct the jury on self-defense and by failing to deviate downward from the sentencing guidelines. We affirm the district court's refusal to give an instruction on self-defense and remand for resentencing.

FACTS

On July 30, 1995, Harskamp went to a street dance with his girlfriend Tammy Ykema. [1] During an argument, Harskamp grabbed Ykema by the back of her neck. David Kellen observed this incident and decided to intervene because it looked as if Harskamp was hurting Ykema. Kellen told Harskamp to leave Ykema alone and then he grabbed Harskamp and held him against a picnic table. Kellen testified that as Harskamp walked away, Harskamp said that he was going to kill him. David VanHeerde also observed Harskamp pulling Ykema by her hair. He walked over to intervene, but Kellen had already broken it up.

Approximately 20 minutes later, Kellen and VanHeerde observed Harskamp walking into a bar. Because they had seen Ykema go into the bar earlier, they were concerned that Harskamp might be following her, so they also went into the bar. Inside the bar, they saw Harskamp pointing and yelling at Ykema. Kellen grabbed Harskamp by the shoulder and told him to leave Ykema alone. Harskamp then opened the door behind him and stepped outside. When Kellen followed Harskamp outside, Harskamp pulled a gun out of his pants and pointed it at Kellen's face. Kellen ducked and after a brief struggle managed to get the gun away from Harskamp.

Harskamp told authorities two different stories as to how he got the gun. John Kindseth, a state trooper, testified that Harskamp told him that he had found the gun lying behind the bar. Pipestone County Deputy Sheriff Greg Lingen testified that Harskamp told him that when he walked around the corner of the bar, the gun was in mid-air and he caught it.

Ykema and her sister testified that Kellen started the fight and that three or four guys were jumping on Harskamp.

The jury found Harskamp guilty of second-degree assault.

D E C I S I O N

1. Harskamp argues the district court abused its discretion by refusing to instruct the jury on self-defense. Whether to give a requested jury instruction is within the discretion of the district court. State v. Jensen, 448 N.W.2d 74, 76 (Minn. App. 1989). A refusal to give a particular instruction is not error "where the evidence does not support the proposed instruction and no abuse of discretion is shown." Id.

Harskamp is entitled to a self-defense instruction if there is evidence to support that theory. See State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977), cert. denied, 435 U.S. 996 (1978). While the defendant does not have the burden to prove self-defense, the defendant has the "burden of going forward with evidence to support his claim of self-defense." State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985) (citation omitted). The burden of going forward with the evidence is complete when the defendant submits "reasonable evidence that the victim was committing an independent assault on defendant at the time defendant [committed the assault]." Id.

The elements of self-defense in a criminal case are (1) the absence of aggression or provocation on the part of the defendant; (2) the defendant's actual and honest belief that he or she was in imminent danger of death or great bodily harm and that the action taken was necessary to avert that danger; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable possibility of retreat to avoid the danger. In addition, the amount of force used in self-defense must be limited to that which would appear to be necessary to a reasonable person under similar circumstances.

State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987) (citations omitted).

Here, although the evidence indicated that Kellen approached Harskamp both times, the evidence also showed that Kellen approached Harskamp only because he was concerned that Harskamp was going to hurt Ykema. The evidence does not show that reasonable grounds existed for Harskamp to believe that he was in imminent danger of death or great bodily harm. In fact, Harskamp had walked away from Kellen earlier in the evening without incident, and Kellen testified that Harskamp was walking away when Harskamp pulled the gun out. See State v. Mitjans, 408 N.W.2d 824, 833 (Minn. 1987) (although self-defense instruction given, supreme court explained that defendant not entitled to such an instruction where "he escalated the incident to a life-threatening level by unreasonably pulling [out a] gun"). In addition, Harskamp's explanations to authorities regarding how he "accidently" got the gun demonstrate that he did not believe that he was in imminent danger. Because Harskamp did not meet his burden of going forward with evidence to support his self-defense claim, we conclude the district court did not abuse its discretion by refusing to give a self-defense instruction.

2. Harskamp contends this case must be remanded for resentencing because the district court erroneously believed that it did not have the authority to depart downward from the presumptive sentence. In denying Harskamp's motion for a downward departure, the district court stated, "The Court personally believes that the mandatory minimum is probably too long, but under the statute I don't believe I have any choice."

A sentencing court, however, may depart from the presumptive sentence if the case involves "substantial and compelling circumstances." Minn. Sent. Guidelines II.D. Because the record indicates that the district court in this case did not believe that it had the authority to depart downward from the presumptive sentence, this case must be remanded for resentencing. We note that the parties agree that in determining whether to impose a downward dispositional departure, the court should focus on Harskamp's amenability to probation. See State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982) (listing factors to consider in determining whether defendant "particularly suitable to individualized treatment in a probationary setting").

Affirmed in part and remanded for resentencing.


Footnotes

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

[1] Harskamp and Ykema were later married.