This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-660

State of Minnesota,

Respondent,

vs.

Anthony (NMN) Carter,

Appellant.

Filed December 31, 1996

Affirmed

Schumacher, Judge

Hennepin County District Court

File No. 95019702

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Forsberg, Judge.[*]

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

SCHUMACHER, Judge

Anthony (NMN) Carter appeals from a conviction for second-degree felony murder, arguing the trial court gave the jury misleading and erroneous instructions. We affirm.

FACTS

Carter and Lashawn Jones were romantically involved and lived together in an apartment. On December 1, 1994, another tenant, Terrance Donner, broke up a fight between the two in the hallway of the building. Carter left the building and Donner offered to stay with Jones.

Carter returned to the apartment and threatened Donner. Donner left and Carter assaulted Jones. Donner returned with the police. Carter pleaded guilty to disorderly conduct and was barred from the building.

After patching things up with Jones, Jones moved into a new apartment so Carter could visit. On March 3, 1995, Donner came to visit Jones. Donner and Carter got into a fight, and Donner eventually died from five stab wounds he received from Carter. The state alleges Carter intentionally stabbed Donner. Carter argues he was trying to protect himself from Donner's attacks.

After the close of testimony, the trial judge instructed the jury on second-degree intentional murder, first-degree manslaughter, second-degree felony murder and second-degree assault, self-defense, and defense of dwelling. Carter was convicted of second-degree felony murder. Carter appeals.

D E C I S I O N

"'Trial courts are allowed "considerable latitude" in selection of language in the jury charge.'" State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)), cert. denied, 498 U.S. 1030 (1991). Jury instructions when viewed in their entirety, however, must fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988), cert. denied, 498 U.S. 945 (1990).[1]

1. Carter argues the self-defense instruction is prejudicial because it does not instruct the jury that Donner's death was unintentional. In Minnesota, where the defendant claims the death was unintentional, the trial court is to use the term "defendant's action" instead of "killing." 10 Minnesota Practice, CRIMJIG 7.05, cmt. (Supp. 1996); see State v. Marquardt, 496 N.W.2d 806, 806 (Minn. 1993) (noting that use of language like "killing" is inappropriate where defendant claims death was unintentional). Here, the trial court used the modified language. The instruction only referred to Carter's actions and did not use the word "killing." The trial court's instruction fairly and adequately stated the law in Minnesota and were free from prejudice.

2. Carter argues the trial court's combination instruction for self-defense and defense of dwelling was reversible error because it required Carter to satisfy the three factors of State v. Boyce, 284 Minn. 242, 170 N.W.2d 104 (1969). We disagree.

Generally, the use of force in self-defense is authorized by statute:

[R]easonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist:

* * * *

(3) when used by any person in resisting * * * an offense against the person; or

(4) when used by any person in lawful possession of real or personal property, * * * in resisting a trespass upon or other unlawful interference with such property; * * *

Minn. Stat. § 609.06, subd. 1 (1996). The statutes further provide that

[t]he intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.

Minn. Stat. § 609.065 (1996).

In Boyce, the supreme court held that

[a]t least three conditions must concur to excuse or justify homicide under SSSS 609.06 and 609.065:

(1) The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm.

(2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances.

(3) The defendant's election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.

284 Minn. at 254, 170 N.W.2d at 112. These three conditions have been incorporated into CRIMJIG 7.05. 10 Minnesota Practice, CRIMJIG 7.05 (Supp. 1996).

Here, the trial court's inclusion of the Boyce factors was not error because section 609.065 "operates as a limitation on the preceding section, § 609.06." Minn. Stat. Ann. § 609.065 advisory comm. cmt. (West 1987). Moreover, Carter presented evidence and specifically argued both a defense of dwelling theory to the jury and that he was resisting an offense which he believed exposed him to great bodily harm or death. Because all three Boyce factors must be established to satisfy the latter defense, we conclude that the trial court's inclusion of the Boyce factors in its combined jury instructions "fairly and adequately" stated the law in Minnesota.

3. Carter argues that the trial court erred in not instructing the jury that Donner's death could have been accidental. We disagree. The defense of accidental death means that the defendant did not intend to harm the victim, but that death occurred anyway. See, e.g., State v. Sanders, 376 N.W.2d 196, 201 (Minn. 1985) (claiming gun aimed in self-defense but shooting was accident).

Here, Carter never testified that Donner's death was accidental. Carter testified that he stabbed Donner five times. Carter stated to the police after the stabbing that he wanted to hurt Donner with the knife. Carter did not request an accidental death instruction and did not argue it as a theory to the jury. The trial court did not err in not instructing the jury on accidental death.

Affirmed.

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

[ ]1 Because Carter's claims relate to errors of fundamental law in the jury instructions, we hold that Carter did not waive his right to appeal the jury instructions issue by failing to object to the instructions at trial. See State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (reviewing alleged errors in jury instructions despite no objection at trial where claims relate to errors of "fundamental law" in jury instructions).