may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Anthon James Lee,
Filed September 23, 1997
Rock County District Court
File No. K09670
Donald R. Klosterbuer, Rock County Attorney, Rock County Courthouse, 213 Esat Luverne Street, Luverne, MN 56156 (for respondent)
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.
This appeal is from a judgment of conviction for third-degree assault and terroristic threats. Minn. Stat. §§ 609.223, subd. 1, .713, subd. 1 (1996). Appellant Anthon Lee challenges the trial court's refusal to give two requested jury instructions and the court's admission of certain evidence. We affirm.
When police responded to the scene, the motorist returned, and he and an officer went to Lee's apartment, where the motorist identified Lee as his assailant. Hart began wrestling with the officer, and after police had subdued Hart and led him to a squad car, Lee started yelling at the officers, telling them he was going to "AK your ass." The trial court ruled that the state could introduce into evidence AK-47 bullets found in a search of Lee's apartment.
Lee requested a jury instruction that fifth-degree assault was a lesser-included charge of third-degree assault and that, if the jury had a reasonable doubt as to which offense Lee committed they should convict only on the lesser offense. The trial court denied this request. The trial court also denied Lee's request for a cautionary instruction on eyewitness identification.
Lee's argument that the bullets were Spreigl evidence is not persuasive. The jury was not told that Lee had a prior conviction, and therefore had no way of knowing he might be a felon in possession of a weapon. Although admitting the bullets posed some risk of unfair prejudice, the trial court did not abuse its discretion in finding that they had sufficient probative value to warrant admission.
The supreme court has stated that
in those cases where the circumstances raise any possible doubt in the court's mind as to the reliability of the identification, serious consideration should be given to [granting a defense request for a cautionary instruction].
State v. Burch, 284 Minn. 300, 316, 170 N.W.2d 543, 554 (1969). Whether a cautionary instruction should be given depends on the particular circumstances of each case. State v. Bishop, 289 Minn. 188, 195, 183 N.W.2d 536, 540-41 (1971).
The motorist gave a description of his assailant to a police officer minutes after the assault, he identified Lee as his assailant at the scene, and he again identified him unequivocally at trial as the man who punched him through the car window. Moreover, the motorist had a very good opportunity to observe the perpetrator as he approached the car, and to observe both Hart and Lee at the scene shortly after the assault. Under these circumstances, the trial court's decision not to give a cautionary instruction was not an abuse of discretion.
The complaint charged Lee with both fifth-degree assault and third-degree assault. Fifth-degree assault is a lesser-included offense of third-degree assault, which, as charged in this case, required infliction of substantial bodily harm. See Minn. Stat. § 609.223, subd. 1 (intentional infliction of substantial bodily harm constitutes third-degree assault); cf. Minn. Stat. § 609.224, subd. 1(2) (intentional infliction of bodily harm constitutes fifth-degree assault).
CRIMJIG 3.20 instructs the jury that certain offenses on which it is instructed are lesser offenses. It states:
You are instructed that the presumption of innocence and the requirement of proof beyond a reasonable doubt apply to these lesser crimes. If you find beyond a reasonable doubt that defendant has committed a crime but you have a reasonable doubt which crime has been committed the defendant is guilty of the lesser crime only.
10 Minnesota Practice CRIMJIG 3.20 (3d ed. 1990).
The complaint charged Lee with the two different degrees of assault based on separate acts. It alleged that Lee committed fifth-degree assault by punching the motorist in the eye, and committed third-degree assault by striking him in the lip, requiring stitches. Since the motorist testified that he was punched twice, this division of the assault charges had support in the evidence, and arguably deprived Lee of any right to a CRIMJIG 3.20 instruction because the fifth-degree assault charge related to a different act than the third-degree assault charge.
At trial, the state presented a different theory, under which the jury could find Lee committed fifth-degree assault if they found the punch to the motorist's lip did not cause substantial bodily harm. Defense counsel argued that the motorist's injuries reflected only a fifth-degree assault. We conclude that the parties' arguments were sufficient to point out to the jury that they could convict on fifth-degree assault if they had a reasonable doubt as to whether the motorist suffered substantial bodily harm. This is not a case in which the jury could have been confused as to whether fifth-degree assault was a lesser-included offense, or as to whether they could acquit Lee on the third-degree assault charge but convict him on the fifth-degree assault charge. The trial court did not abuse its discretion in refusing to give CRIMJIG 3.20.