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,
Filed January 6, 1998
Olmsted County District Court
File No. CX951103
Hubert H. Humphrey III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Raymond Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)
Michael C. Davis, Special Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Holtan, Judge.
On appeal from a conviction for second-degree assault with a dangerous weapon, appellant Michael Gebremariam argues that he is entitled to a new trial because (1) the evidence was insufficient to prove that he used a dangerous weapon and that he did not act in self-defense; (2) erroneous jury instructions deprived him of his right to a fair trial; and (3) the prosecutor committed misconduct during closing argument. We affirm.
Appellant and Le threw glass bottles at the victim and her boyfriend. The boyfriend testified that they threw the bottles "about as hard as you throw a baseball if you were a pitcher." The victim estimated that appellant and Le were about three feet away from her and her boyfriend when they threw the bottles. The victim and her boyfriend testified that the bottles in the pool area that could have been thrown by appellant and Le were beer bottles, champagne bottles, and a one-liter liquor bottle. The boyfriend thought that appellant and Le aimed the bottles at his and the victim's heads, and one bottle hit the victim in the head, cutting it open.
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
A person who "assaults another with a dangerous weapon" commits second-degree assault. Minn. Stat. § 609.222, subd. 1 (1994); see also Minn. Stat. § 609.05 (1994) (liability for crimes of another). A dangerous weapon means any
device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.
Minn. Stat. § 609.02, subd. 6 (1994); see also Minn. Stat. § 609.02, subd. 8 (1994) (defining great bodily harm). "[T]he definition of dangerous weapon * * * must be expressed in flexible terms and be broad and inclusive." State v. Graham, 366 N.W.2d 335, 337 (Minn. App. 1985). "Some things that are not ordinarily thought of as dangerous weapons become dangerous weapons if so used." State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983).
Appellant argues that the evidence was insufficient to prove the element of dangerous weapon because the state did not establish what bottle hit the victim. But physical contact is not an element of assault. Assault is defined as an "act done with intent to cause fear in another of immediate bodily harm" or the "intentional infliction of or attempt to inflict bodily harm upon another." Minn. Stat. § 609.02, subd. 10 (1994). The state therefore was not required to show what bottle hit the victim; the relevant issue was whether the bottles that were thrown at the victim were dangerous weapons.
It was reasonable for the jury to conclude that all of the bottles that were thrown were dangerous weapons. The state presented evidence that beer bottles, champagne bottles, and a one-liter liquor bottle were the bottles in the pool area that could have been thrown by appellant and Le; appellant and Le threw the bottles at the victim's and her boyfriend's heads from a distance of about three feet away; and they threw the bottles hard, at the speed with which a pitcher throws a baseball. This evidence was sufficient to show that even the beer bottles, thrown with force at close range by appellant and Le, were intended or likely to produce great bodily harm. See, e.g., State v. Moss, 269 N.W.2d 732, 733, 736 (Minn. 1978) (large pair of scissors was dangerous weapon); State v. Davis, 540 N.W.2d 88, 90-91 (Minn. App. 1995) (hands and feet were dangerous weapons), review denied (Minn. Jan. 31, 1996).
Appellant also argues that the evidence was insufficient to prove that he did not act in self-defense. A person may use reasonable force against the person of another when resisting, or when the actor reasonably believes it necessary to resist, an offense against the person. Minn. Stat. § 609.06(3) (1994); see also State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987) (explaining self-defense elements). When a defendant raises self-defense, the state has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. McKissic, 415 N.W.2d at 344.
Appellant claims that he threw the bottles because he feared he was about to be assaulted by the boyfriend. The state presented evidence that before the bottles were thrown, the boyfriend (1) spoke in a moderate tone of voice and was not yelling or shouting; (2) did not make any gestures or act in an aggressive manner or do anything threatening towards appellant or Le; and (3) remained seated in the hot tub. Although the boyfriend made racial slurs against appellant, the racial slurs did not include any threat of physical action. This evidence was sufficient to prove beyond a reasonable doubt that appellant did not act in self-defense. Cf. State v. Peterson, 411 N.W.2d 518, 521-22 (Minn. App. 1987) (when victim threatened to kill appellant, appellant's knowledge that victim did not have a gun was factor supporting trial court's decision not to give a self-defense instruction), review denied (Minn. Oct. 21, 1987).
Appellant argues that the testimony of the victim, her boyfriend, and his friend about the boyfriend's behavior before the bottles were thrown lacked credibility. But determining witness credibility "lies within the exclusive province of the jury." State v. McAdory, 543 N.W.2d 692, 696 (Minn. App. 1996).
The trial court's initial instructions incorrectly defined dangerous weapon and omitted part of the definition of great bodily harm. Before closing arguments began, the trial court informed the jury that the court had omitted a line from the instructions and then reread all of the elements of assault to the jury. The second instructions contained the complete definition of great bodily harm, but still incorrectly defined dangerous weapon. When discussing a question from the jury with defense counsel and the prosecutor, the trial court realized it had incorrectly instructed the jury on the definition of dangerous weapons. The court informed the jury that it had given an incorrect instruction on one of the elements of assault and then reread all of the instructions on the elements of assault and self-defense, correctly defining both dangerous weapon and great bodily harm.
The court's final instructions correctly stated the law, and the instructions as a whole were not misleading. The trial court corrected its mistake in defining great bodily harm almost immediately after it finished instructing the jury. In correcting its mistake in defining dangerous weapon, the trial court explained to the jury that it had given an incorrect instruction on one of the elements of assault, reread the elements of assault and self-defense to the jury, and provided the jury with a written copy of the correct instructions. Because the court reread all of the elements of assault when it corrected the definition of great bodily harm and then reread all of the elements of assault and self-defense when it corrected the definition of dangerous weapon, the instructions did not emphasize the elements of dangerous weapon and great bodily harm. The incorrect instructions suggested that the state had a more difficult burden of proof to meet than it had in actuality. Under these circumstances, the incorrect instructions were not prejudicial to appellant.
Appellant objects to the prosecutor referring to defense tactics as a smoke screen. The prosecutor stated that appellant's emphasis on events that occurred after the bottles were thrown was a smoke screen. The prosecutor told the jury to focus on the events that occurred before the bottles were thrown, not what happened afterwards. Because the argument was based on the evidence presented at trial, it was proper. See State v. Wright, 371 N.W.2d 238, 240 (Minn. App. 1985) (smoke screen argument that was based on evidence presented at trial was proper), review denied (Minn. Sept. 13, 1985).
Appellant also contends that the prosecutor made an improper law and order argument. The prosecutor stated that only the jury could convict appellant and Le and that the jury's role was to apply the community's standards to determine whether it was reasonable to throw glass bottles in response to a racial slur. The prosecutor then stated:
If you were to acquit these defendant's, you can be assured that the people walking out of this courtroom would be even more dangerous than the people who walked in --.
The trial court sustained an objection to the argument and instructed the jury to apply the law as the court had explained it and to not consider the results of the verdicts.
The argument emphasizing the importance of the jury's role was proper because it was directed towards an element of self-defense, reasonable force. The last sentence may have been directed towards an improper law and order theme. See, e.g., State v. Threinen, 328 N.W.2d 154, 157 (Minn. 1983) (improper for prosecutor to suggest "that the jury represented the people of the community and that their verdict would determine what kind of conduct would be tolerated on the streets"). But the remark was only a partial sentence, the law and order theme was not repeated or emphasized, and the trial court gave a curative instruction. Any misconduct by the prosecutor was not serious or prejudicial, and the trial court did not abuse its discretion in denying appellant's motion for a new trial.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.