may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Ramsey County District Court
File No. K9-96-2243
John M. Stuart, State Public Defender, 2829 University Avenue Southeast, #600, Minneapolis, MN 55414, James T. Diamond, Jr., Special Assistant Public Defender, Diamond & Maeyaert, P.L.L.P., 2250 Fifth Street Towers, 100 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.
Appellant challenges his assault conviction, arguing that there was insufficient evidence to support the conviction. We affirm.
At this point, quite independently of the previous incident, Txawj Xiong was driving his car down the street. He and his wife, Joua Vang, and their 11-year old son, Meng Xiong, were returning from a family picnic. As he approached the intersection, he saw a white male, whom he identified as the man not wearing glasses, later identified as Benton, approach his car. He heard pounding on his trunk and in his rear-view mirror noticed the man limping away. Xiong stopped and exited his car, and, fearing for his safety, released the latch on his trunk, where a large Hmong carving knife was kept with the picnic supplies.
While there are conflicting accounts of what occurred, Xiong testified that he verbally confronted Benton, who began to hit or kick Xiong in the chest. Xiong fell to the ground, got up, and retrieved the knife from the trunk. A man Xiong identified as the man with glasses, later identified as Tenerelli, then appeared and seemed to have kicked the knife out of Xiong's hands. Tenerelli then began to kick Xiong. Tenerelli then held Xiong's head and neck under Tenerelli's arm, during which time Xiong was stabbed twice in the back. Benton and Tenerelli ran away.
Based on the original witness statements, Tenerelli was originally charged with aiding and abetting Benton in a second-degree assault against Xiong. After there were revisions in the accounts, Tenerelli was charged with one count of second-degree assault against Joua Vang, one count of second-degree assault against Xiong, one count of fifth-degree assault against Xiong, and one count of terroristic threats. A jury convicted him of both second- and fifth-degree assault against Xiong, pursuant to Minn. Stat. § 609.222 (1996) (assault with a dangerous weapon) and Minn. Stat. § 609.224 (1996) (committing an act with the intent to inflict bodily harm or an attempt to inflict bodily harm), respectively. This appeal followed.
According to the trial transcript, it is true that Xiong testified that as Tenerelli held his head and neck under Tenerelli's arm, the "first guy" (Benton) stabbed him. However, Xiong also stated that he could not see the person who stabbed him because he was facing away from the stabber. When St. Paul Police Officer, David Her Yang, who speaks Hmong, was sent to interview Xiong and his family in their native language, Xiong told him that he couldn't exactly see who was holding him and who was stabbing him because of his position.
It is also true that Xiong's wife, Vang, thought that Tenerelli held Xiong while Benton stabbed him. Not only did she testify to this at trial, but Officer Yang, who also interviewed Vang, testified that Vang said that the man with glasses (Tenerelli) was holding her husband while the man without glasses (Benton) stabbed him.
There was, however, testimony that pointed to Tenerelli as the stabber. Benton testified that Tenerelli told him in jail that he stabbed Xiong. In addition, Christopher Gary Langula, who was Tenerelli's cellmate at the Adult Detention Center, testified that Tenerelli told him that he used a knife on an Asian man "in self-defense from behind." Langula said that Tenerelli told him that he stabbed the Asian man in the lower back while Benton held the man's arms. While Benton's testimony was obviously in his best interests, the jury may have found Benton's and Langula's accounts of the incident more credible than that of Xiong and his wife. Witness credibility is an issue for the jury to determine. Mayzlik v. Lansing Elevator Co., 241 Minn. 468, 473, 63 N.W.2d 380, 384 (1954). In addition, witness Grant Mooris initially stated that it was Tenerelli that stabbed Xiong.
In any event, Tenerelli's conviction very likely stemmed from his aiding and abetting of Benton's stabbing of Xiong.
A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
Minn. Stat. § 609.05, subd. 1 (1996). The word "intentionally" is defined by statute as meaning
that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result.
Minn. Stat. § 609.02, subd. 9(3) (1996).
Tenerelli asserts that the evidence supporting his second-degree assault conviction is entirely circumstantial. A conviction may rest on circumstantial evidence. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). Tenerelli seems to believe that the intent requirement of aiding and abetting requires that the state establish Tenerelli's motive to participate in the assault. This is not an accurate statement of the law. Presence, companionship, and conduct before and after the offense are circumstances from which a person's intentional criminal participation may be inferred. State v. Parker, 282 Minn. 343, 355, 164 N.W.2d 633, 641 (1969). The weight of the evidence--testimony from Xiong, Vang, Mooris--easily points to Tenerelli's intentional aiding of the offense.
________________________________ Judge Roland C. Amundson