This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota



Jeffrey Charles Miessner,


Filed May 20, 1997


Huspeni, Judge

Ramsey County District Court

File No. KX-95-2273

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

Susan Gaertner, Ramsey County Attorney, Jessica S. McConaughey, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for Respondent)

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

Considered and decided by Schumacher, Presiding Judge, Parker, Judge, and Huspeni, Judge.



Appellant challenges a jury conviction of second-degree assault. Because appellant waived his right to be present during the omnibus hearing, and because appellant has not shown that the trial court committed reversible error when admitting prior act evidence and when instructing the jury, we affirm.


An argument developed between appellant Jeffrey Miessner and his brother W.M. while W.M. was an overnight guest at appellant's home. Appellant asked W.M. to leave, but he refused. As the argument continued to grow, appellant revealed something in his pocket that appeared to be a gun. W.M. said, "Go ahead and shoot me." W.M. then punched appellant in the face. Appellant's gun discharged and wounded W.M. in the abdomen. Appellant stated, "I shot my brother. Oh, my God." Appellant ran down the street to some nearby woods and buried the gun. W.M. was taken to the hospital and treated for injuries.

As appellant came out of the woods, a police officer approached. Appellant told her that he was the person for whom she was looking. Appellant also told the officer he had shot his brother, and he hid the gun in the woods. Appellant then stated he was unconcerned about his brother's condition and did not care if he died.

Appellant was charged with second-degree assault and attempted second-degree murder. Though appellant failed to appear, the trial court conducted the omnibus hearing and denied a motion to suppress appellant's statements to the officers. Appellant appeared at trial. A jury convicted him of second-degree assault and the trial court sentenced him to 36 months in prison.


1. Right to be Present

A defendant has the right to be present at every critical stage of his trial, including the pretrial suppression hearing. Minn. R. Crim. P. 26.03, subd. 1; see State v. Grey, 256 N.W.2d 74, 76 (Minn. 1977) (including pretrial suppression hearing). However, a defendant may waive this right. Grey, 256 N.W.2d at 76.

Relying on Grey, appellant argues his right to be present at the omnibus hearing was violated. In Grey, the supreme court reversed the defendant's conviction, ruling that his absence from a pretrial suppression hearing violated his right to be present. Id. at 77. In that case, the trial court and both attorneys met in chambers to consider pretrial motions, one of which was defense counsel's motion to suppress incriminating photographs. Id. at 76. Although defendant was present in the courtroom, defense counsel remained in chambers for consideration and denial of the motion and defendant was not advised of this in-chambers proceeding until the time of sentencing. Id.

The facts in the case before us are distinguishable from those in Grey and do not require reversal of appellant's conviction. Here, the record indicates that appellant had the opportunity to appear at the omnibus hearing, but chose not to do so. He was aware of the hearing date and presented no justification for his absence. We therefore conclude that appellant voluntarily waived his right to be present. See State v. DelCastillo, 411 N.W.2d 602, 604 (Minn. App. 1987) (defendant waived his right to be present during closing arguments because he voluntarily and without justification absented himself).

2. Spreigl Evidence

Minn. R. Evid. 404(b) provides:

Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In a criminal prosecution, such evidence shall not be admitted unless the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence.

See also State v. Bolte, 530 N.W.2d 191, 196 (Minn. 1995); State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965).

The decision to admit Spreigl evidence rests with the sound discretion of the trial court and a ruling on this issue will not be disturbed absent a clear abuse of discretion. State v. DeWald, 464 N.W.2d 500, 503 (Minn. 1991). In determining relevancy, the trial court should focus on the closeness of the relationship between the other crime and the charged crime in terms of time, place, and modus operandi. State v. Cogshell, 538 N.W.2d 120, 123 (Minn. 1995). The closer the relationship, the greater the relevance or probative value of the evidence and the less the likelihood that the evidence will be used for an improper purpose. Id. Before any other crime evidence is admitted, however, the trial court should consider the state's need for the evidence to support its case. Bolte, 530 N.W.2d at 197 n.2 (citing DeWald, 464 N.W.2d at 504).

The trial court allowed testimony from an officer of a prior incident involving appellant. Appellant stipulated that he struck the officer at a wedding reception in 1989. In reviewing the record before us, we find both the quantity and quality of evidence against defendant to be substantial, and we seriously question whether the state's case suffered from the weakness required by DeWald. Nonetheless, even if we were to conclude that the state failed to demonstrate the need for Spreigl evidence, we would be compelled to find its admission harmless due to the plethora of other evidence properly admitted.

3. Jury Instruction

Appellant contends the trial court committed plain error by failing to give an instruction on defense of dwelling. Jury instructions, viewed in their entirety, must fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). Defendants are entitled to an instruction on their theory of the case if there is evidence to support that theory. State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977), cert. denied, 435 U.S. 996, 98 S. Ct. 1648 (1978). A defendant should only be given a new trial if it cannot be said beyond a reasonable doubt that the error in jury instructions had no significant impact on the verdict. State v. Olson, 482 N.W.2d 212, 216 (Minn. 1992).

Minn. Stat. § 609.06 (1994) states that reasonable force may be used on another when an actor reasonably believes he is resisting an offense against the person or when the actor reasonably believes he is resisting or aiding another in resisting a trespass or other interference with property. Minn. Stat. § 609.065 (1994) further provides 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.

Because Minn. Stat. § 609.065 incorporates Minn. Stat. § 609.06, a defendant's actions in defense of his dwelling must still be reasonable to rely on the defense. See State v. McCuiston, 514 N.W.2d 802, 805-06 (Minn. App. 1994), review denied (Minn. June 15, 1994).

The trial court instructed the jury on self-defense in this case and in so doing clearly laid out the requirement that appellant's actions be reasonable. Appellant shot his unarmed brother in the abdomen. The jury's conviction on the charge of assault despite the self-defense instruction indicates a finding that appellant's action was an unreasonable use of force in defense of himself. Under the evidence presented, appellant's use of force was even less reasonable for his defense of dwelling than for his defense of self. Thus, even if warranted, a jury instruction on the reasonable use of force to protect his dwelling would not have affected the case's outcome and its omission would have been harmless.